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OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


ZIbe  xaniversitY)  of  Cbicaoo 


THE  PARDONING  POWER  IN  THE 
AMERICAN  STATES 


A  DISSERTATION 

SUBMITTED  TO  THE  FACULTY 

OF  THE  GRADUATE  SCHOOL  OF  ARTS  AND  LITERATURE 

IN  CANDIDACY  FOR  THE  DEGREE  OF 

DOCTOR  OF  PHILOSOPHY 

DEPARTMENT  OF  POLITICAL  SCIENCE 


BY 

CHRISTEN  JENSEN 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,  ILLINOIS 

IQ22 


Copyright  iq22  By 
The  University  of  Chicago 


All  Rights  Reserved 


Published  June  1922 


Composed  and  Printed  By 

The  University  of  Chicago  Press 

Chicato,  Illinois,  U.S.A. 


'iiaai>»5>tai 


PREFACE 

The  exercise  of  the  clemency  power  offers  an  excellent  illustration 
of  the  use  of  administrative  discretion.  Because  of  limited  constitu- 
tional and  statutory  regulation  the  practices  which  have  developed  in 
the  administration  of  clemency  in  the  American  states  are  numerous 
and  varied  in  character.  The  purpose  of  this  study  is  to  examine 
and  criticize  the  organization  and  methods  of  operation  of  clemency 
authorities. 

The  scope  of  clemency  is  so  broad  that  it  has  been  necessary  to 
confine  this  investigation  to  a  limited  field.  An  examination  of  the 
administration  of  clemency  in  the  national  government  has  therefore 
been  left  untouched.  For  the  same  reason  this  study  does  not  deal 
with  the  pardoning  power  of  mayors  and  other  local  officials  in  those 
cases  where  the  exercise  of  this  power  for  minor  offenses  has  been  vested 
in  them. 

No  attempt  has  been  made  to  deal  with  the  subject  of  clemency 
from  the  standpoint  of  the  sociologist  and  criminologist.  This  field  of 
investigation,  although  of  vital  importance,  lies  outside  the  scope  of 
this  study  which  is  limited  to  an  examination  of  the  administration 
of  this  power. 

Valuable  assistance  and  encouragement  in  this  undertaking  have 
been  received  from  Professors  Ernst  Freund,  C.  E.  Merriam,  and  Mr. 
W.  F.  Dodd.  I  am  also  much  indebted  to  pardoning  officials  of  several 
states  for  their  kindness  in  furnishing  information. 

C.J. 


561532 

POLITiryiL  Bcp^rv 


CONTENTS 

CHAPTER  PAGE 

I.  Introductory:     The    Pardoning    Power    in    the    American 

Colonies i 

II.  State  Organization  of  the  Pardoning  Power     .       .       .       .  q 

III.  Administration  and  Operation  of  Pardon  Authorities     .       .  23 

IV.  Administration    aivD    Operation    of    Pardon    Authorities — 
Continued 44 

V.  The  PARDO^^NG  Po\\^r  in  Some  Western  States:   California, 

Oregon,  Nevada,  Idaho,  Utah,  Colorado,  Wyoming    ...  65 

VI.  Standards   and    the    Problem    of    Standardization   in    the 

Adivhnistration  of  the  Pardoning  Po'wer 88 

VII.  Some  Legal  Aspects  OF  THE  Pardoning  Power      .       .       .       .110 

Bibliography 131 

Table  of  Cases 137 

Index 139 


CHAPTER  I 

INTRODUCTORY:   THE  PARDONING  POWER  IN  THE 
AMERICAN  COLONIES 

The  principle  of  clemency  as  developed  in  the  English  governmental 
system  and  transmitted  to  America  had  its  probable  origin  in  the  early 
tribal  life  of  the  Teutonic  peoples.  Its  application  at  this  early  date 
was  extremely  vague  and  uncertain  because  of  many  counteracting 
influences.  The  existence  of  the  right  of  private  vengeance  and  retalia- 
tion, the  wergeld,  and  the  blood  feud  offset  its  use.  Added  to  this  was 
the  weakness  of  the  royal  power  which  was  often  nullified  by  powerful 
nobles. 

This  condition  was  typical  of  the  different  areas  of  England  during 
the  early  Saxon  rule.  Coupled  with  this  was  the  absence  of  a  system 
of  national  jurisprudence,  and  no  clear  demarcation  between  public  and 
private  wrongs.  As  a  result  the  kings  attempted  to  apply  clemency 
to  those  offenses  only  which  were  committed  by  members  of  their 
own  household,  or  to  offenses  which  threatened  their  royal  power  and 
authority. 

The  idea  of  clemency  seems  to  have  been  loosely  recognized  in  the 
laws  of  Aethelbert  of  Kent,  of  Alfred,  and  in  the  collections  of  Edward 
the  Confessor.  The  royal  prerogative  was  greatly  strengthened  through 
the  conquest  of  England  by  the  Normans.  William  the  Conqueror 
brought  from  Normandy  the  view  that  clemency  was  an  exclusive 
privilege  of  the  king.  But  in  practice  he  was  compelled  to  acknowledge 
the  limitations  of  this  theory.  The  church  was  able  through  its  strong 
power  to  develop  its  system  of  canon  law  and  to  claim  the  exemption 
of  the  clergy,  in  criminal  matters,  from  the  king's  jurisdiction.  This 
"benefit  of  clerg}^-"  operated  to  lessen  the  monarch's  complete  power 
in  matters  of  clemency.  The  granting  of  power  to  the  county  palatines 
had  a  like  effect. 

During  this  early  period  Glanville  and  Bracton  had  occasion  to 
refer  to  the  clemency  power  and  the  latter  indicated  some  royal  limita- 
tions by  declaring: 

But  in  all  the  aforesaid  cases,  whatever  may  have  been  the  cause,  when  the 
outlawry  has  been  made  duly  and  according  to  the  law  of  the  land,  a  person 
is  not  restored  except  to  the  king's  peace  alone,  that  he  may  go  and  return  and 


2  THE  PARDON Il^G  POWER  IN  THE  AMERICAN  STATES 

contract  anew,  for  that  which  has  been  dissolved  by  the  outlawry  cannot  be 
joined  anew  by  the  inlawry  without  a  new  intention  on  the  part  of  those  who 
have  contracted.  For  the  king  cannot  grant  a  pardon  with  injury  or  damage 
to  others.  He  may  give  what  is  his  own,  that  is  his  protection,  which  the 
outlawed  person  has  lost  through  his  flight  and  contumacy,  but  that  which  is 
another's  he  cannot  give  by  his  own  grace.' 

During  the  period  marked  by  the  ascendancy  of  Parliament  from  the 
later  Plantagenets  to  the  Tudors,  Parliament,  on  different  occasions, 
made  efforts  to  regulate  or  curtail  the  administration  of  royal  clemency.' 
With  the  centralization  of  power  under  the  Tudors  it  was  not  surprising 
that  Henry  VIII  should  aim  at  the  possession  of  the  exclusive  exercise 
of  this  power.  This  was  accomplished  by  the  passage  of  the  act  of  27 
Henry  VIII,  c.  24,  which  provided  that  complete  authority  to  grant 
clemency  should  be  vested  in  the  crown.  This  process  of  maintaining 
unimpaired  the  royal  power  to  grant  clemency  continued  under  the 
Tudors  and  the  Stuarts.  But  with  it  went  an  attempt  more  clearly 
to  define  and  describe  its  exercise  and  use. 

Lord  Bacon  was  of  the  opinion  that  the  rigidity  of  the  law  could  be 
partially  corrected  through  the  judiciary  instead  of  appealing  to  the 
monarch  to  extend  mercy.  In  his  essay  "Of  Judicature"  he  advises 
the  judges  as  follows: 

Judges  must  beware  of  hard  constructions,  and  strained  inferences; 
for  there  is  no  worse  torture  than  the  torture  of  laws;  especially  in  the  case 
of  laws  penal,  they  ought  to  have  care  that  that  which  was  meant  for  terror 
be  not  turned  into  rigor  ....  therefore  let  penal  laws  if  they  have  been 
sleepers  of  long,  or  if  they  be  grown  unfit  for  the  present  time,  be  by  wise 

judges  confined  in  the  execution In  cases  of  life  and  death,  judges 

ought  (as  far  as  the  law  permitteth)  in  justice  to  remember  mercy,  and  to 
cast  a  severe  eye  upon  the  example,  but  a  merciful  eye  upon  the  person.^ 

Coke  defined  more  accurately  the  nature  of  clemency  and  its  true 
relationship  to  the  royal  prerogative.'*  A  number  of  other  writers,  both 
legal  and  philosophical,  such  as  Thomas  Hobbes,^  Sir  Mathew  Hale,^ 
Chief  Justice  Holt,  Sir  William  Hawkins,^  Sir  Michael  Foster,*  and 

'  Bracton  (Twiss's  translation,  II,  371). 

*  2  Edward  III,  c.  2;   5  Edward  III,  c.  12;   13  Richard  II,  c.  i. 

3  Bacon's  Essays,  edited  by  Joseph  Devey,  pp.  283-84. 

4  Coke,  Institutes,  chap.  105,  "Of  Pardons." 

5  De  Give,  chap,  iii;  Leviathan,  p.  182. 

*  Historia  Placi.torutn  Coronae.  '  A  Treatise  of  the  Pleas  of  the  Crown. 

*  A  Discourse  on  High  Treason,  9  (Crou-n  Cases). 


PARDONING  POWER  IN  THE  CdWNIES  3 

William  Eden,^  dealt  with  different  aspects  of  clemency  and  attempted 
to  explain  its  true  characteristics  and  its  proper  exercise  and  use  by  the 
monarch. 

But  in  spite  of  these  influences  the  severity  of  the  English  criminal 
law  was  increased  until  in  1769  Sir  William  Blackstone  was  led  to  say: 

Yet,  though  ....  we  may  glory  in  the  wisdom  of  the  English  law,  we 
shall  find  it  more  difficult  to  justify  the  frequency  of  capital  punishment  to  be 
found  there  in,  inflicted  (perhaps  inattentively)  by  a  multitude  of  successive 
independent  statutes  upon  crimes  very  different  in  their  natvires.  It  is  a 
melancholy  truth,  that  among  the  variety  of  actions  which  men  are  daily 
hable  to  commit,  no  less  than  a  hundred  and  sixty  have  been  declared  by  act  of 
parliament  to  be  felonies  without  benefit  of  clergy;  or,  in  other  words,  to  be 
worthy  of  instant  death.  So  dreadful  a  list,  instead  of  diminishing,  increases 
the  number  of  offenders.  The  injured,  through  compassion,  will  often  forbear 
to  prosecute;  juries,  through  compassion,  wUl  sometimes  forget  their  oaths, 
and  either  acquit  the  guilty  or  mitigate  the  nature  of  the  offence;  and  judges, 
through  compassion,  wUl  respite  one-half  of  the  convicts,  and  recommend  them 
to  the  royal  mercy.  Among  so  many  chances  of  escaping,  the  needy  and  hard- 
ened offender  overlooks  the  multitude  that  suffer;  he  boldly  engages  in  some 
desperate  attempt  to  relieve  his  wants  or  supply  his  vices,  and  if,  unexpectedly, 
the  hand  of  justice  overtakes  him,  he  deems  himself  peculiarly  unfortunate  in 
falling  at  last  a  sacrifice  to  those  laws  which  long  impunity  has  taught  him  to 
contemn.* 

Yet  Blackstone  believed  that  it  was  one  of  the  merits  of  the  English 
form  of  government  that  it  provided  a  method  for  modifying  such  a 
harsh  and  severe  condition,  for  he  said: 

This  is  indeed  one  of  the  great  advantages  of  monarchy  in  general  above 
any  other  form  of  government:  that  there  is  a  magistrate  who  has  it  in  his 
power  to  extend  mercy  wherever  he  thinks  it  is  deserved;  holding  a  court  of 
equity  in  his  own  breast  to  soften  the  rigor  of  the  general  law  in  such  criminal 

cases  as  merit  an  exemption  from  punishment To  him,  therefore,  the 

people  look  up  as  the  fountain  of  nothing  but  bounty  and  grace;  and  these 
repeated  acts  of  goodness,  coming  immediately  from  his  own  hand,  endear  the 
sovereign  to  his  subjects,  and  contribute  more  than  any  thing  to  root  in  their 
hearts  that  filial  affection  and  personal  loyalty  which  are  the  sure  establish- 
ment of  a  prince.^ 

When  the  American  colonies  were  founded  the  English  legal  con- 
ceptions of  the  seventeenth  and  eighteenth  centuries  were  transplanted 
to  the  new  world.     Included  in  these  was  the  principle  of  clemency  for 

'  Principles  of  Penal  Law. 

*  Blackstone,  Cofnmentaries,  Book  IV,  p.  18.        ^  Ibid.,  pp.  397-98. 


4        TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

criminal  ofifenders.'  And  in  most  of  the  colonial  charters  the  king 
delegated  the  pardon  power  and  made  provisions  for  its  exercise. 

In  the  first  Virginia  charter  of  1606  no  mention  occurs  regarding 
this  power,  but  in  the  second  charter  in  1609  there  is  granted 

unto  the  said  Treasurer  and  Company,  and  their  Successors,  and  to  such 
Governors,  Officers,  and  Ministers,  as  shall  be  by  our  Council  constituted  full 
and  Absolute  Power  and  Authority  to  correct,  punish,  pardon,  govern,  and 
rule  all  such  the  Subjects  of  Us,  ....  as  shall  from  Time  to  Time  adventure 
themselves  in  any  Voyage  thither  ....  as  well  in  Cases  capital  and 
criminal,  as  civil,  both  Marine  and  other;  So  always  as  the.  said  Statutes, 
Ordinances  and  Proceedings  as  near  as  conveniently  may  be,  be  agreeable  to 
the  Laws,  Statutes,  Government,  and  PoHcy  of  this  our  Realm  of  England.' 

The  third  Virginia  charter  obtained  in  191 2  contained  no  reference  to 
the  pardon  power.  When  this  charter  was  annulled  by  writ  of  quo 
warranto  in  1624  Virginia  became  a  royal  colony  and  the  pardon  power 
from  then  on  to  the  Revolution  was  exercised  by  the  royal  governor. 

The  charter  granted  in  1620  to  the  Council  for  New  England^  was 
similar  to  the  second  Virginia  charter  in  respect  to  clemency.  This 
power  was  granted  to  the  CouncU  and  to  such  governors,  officers,  and 
ministers  as  might  be  constituted  by  the  Council.  The  CouncU  for 
New  England  failed  in  its  colonizing  plans  and  therefore  had  little  need 
for  this  power.  But  when  the  Massachusetts  Bay  Colony  received  its 
charter''  in  1629  it  contained  a  grant  of  the  pardon  power  to  the  governor 
and  company  and  their  officers  which  was  absolute  if  not  repugnant  to 
the  laws  and  statutes  of  the  realm  of  England.  The  Massachusetts 
Body  of  Liberties  adopted  by  the  General  Court  in  1641  contained  a 
provision  that  the  governor  and  deputy  governor  by  joint  consent,  or 
any  three  assistants  concurring  in  consent,  should  have  power  out  of 
court  to  reprieve  a  condemned  criminal  until  the  next  quarter  or  General 
Court,  but  this  latter  body  only  should  have  power  to  pardon  a  condemned 
criminal.^ 

In  1684  the  Massachusetts  Bay  charter  was  annulled  by  a  writ  of 
quo  warranto  and  when  a  commission  was  issued  to  Sir  Edmund  Andros 
on  April  7,  1688,  for  the  governing  of  the  Dominion  of  New  England  it 
conferred  upon  him  the  power  to  pardon  offenders  in  capital  and  criminal 
matters  and  to  remit  fines  and  forfeitures.     Only  in  cases  of  treason 

'  United  States  v.  Wilson,  7  Pet.  150;  McDowell  v.  Couch,  6  La.  Ann.  365. 
^  Thorpe,  Charters  and  Constitutions,  VII,  3800-3801. 
3  Ibid.,  Ill,  1833.  "  Ibid.,  Ill,  1858. 

5  Massachusetts  Body  of  Liberties,  section  72. 


PARDONING  POWER  IN  THE  COLONIES  5 

and  wilful  murder  was  he  forbidden  the  use  of  this  power,  but  in  such 
cases  upon  "extraordinary  occasions"  he  could  grant  reprieves  to  the 
offenders  until  the  intent  of  the  king's  pleasure  could  be  ascertained.' 
The  new  charter  granted  to  Massachusetts  Bay  in  1691  contained  no 
reference  to  the  clemency  power  but  the  governor  appointed  by  the  king 
exercised  it  as  the  direct  representative  of  the  monarch. 

When  Maryland  was  founded  a  charter  was  granted  to  Baron 
Baltimore  and  his  heirs  which  authorized  them  "to  Remit,  Release, 
Pardon,  and  Abolish,  all  Crimes  and  Offences  whatsoever  against  such 
Laws,  whether  before,  or  after  Judgment  passed."^  The  proprietors 
continued  to  exercise  this  power  down  to  the  Revolution  with  the 
exception  of  the  period  from  1690  to  17 15  during  which  Maryland  was 
a  royal  colony. 

In  1639  Sir  Ferdinando  Gorges  obtained  a  grant  of  the  province  of 
Maine  and  full  authority  was  given  unto  him  and  his  successors  to 
pardon,  remit,  and  release  all  offenses  and  offenders  against  any  of  the 
laws  or  ordinances  within  the  said  province.^  In  1677  Maine  was 
bought  by  the  Massachusetts  Bay  Company  and  became  incorporated 
into  that  colony.     It  remained  a  part  of  Massachusetts  until  1820. 

Although  settled  for  some  years  previously  Connecticut  did  not 
receive  a  charter  untU  1662.  This  charter  provided  that  the  General 
Assembly,  or  the  major  part  thereof,  under  their  common  seal  could 
release  or  pardon  offenders  if  the  governor  and  six  of  the  assistants  were 
present  in  such  assembly  or  court."*  The  charter  granted  to  Rhode 
Island  and  Providence  Plantations  in  1663  was  very  similar  to  that  of 
Connecticut  in  this  respect.^ 

The  Carolinas  received  their  first  charter  in  1663.  The  lord  pro- 
prietors were  given  authority  to  remit,  release,  pardon,  and  abolish, 
whether  before  judgment  or  after,  all  crimes  and  offenses  of  every  char- 
acter against  the  laws  of  the  colony.^  In  the  meantime  settlers  had 
drifted  into  Carolina  and  so  in  1665  the  proprietors  granted  them  a 
government  through  an  instrument  known  as  "Concessions  and  Agree- 
ments of  the  Lord  Proprietors  of  the  Province  of  Carolina."  This 
document  provided  that  the  governor  and  council,  after  condemnation, 
could  reprieve  a  case  for  cause  until  the  case  with  a  copy  of  the  whole 
trial  proceedings  could  be  presented  to  the  proprietors  who  would 
pardon  or  command  execution  of  the  sentence. 

'Thorpe,  Charters,  etc.,  Ill,  1866.  *  Ibid.,  I,  533-34. 

=■  Ibid.,  Ill,  1680.  5  Ibid.,  VI,  3215. 

3  Ibid.,  Ill,  1629.  « Ibid.,  V,  2746. 


6        THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

A  new  charter  was  granted  to  the  lord  proprietors  in  1665  in  which 
the  pardon  power  remained  as  it  was  in  the  first  charter.^  When  the 
fantastic  scheme  of  government  framed  by  John  Locke,  and  known  as 
the  Fundamental  Constitutions  of  Carolina,  1669,  was  prepared  for  the 
colonists  it  contained  a  provision,  Article  2)2>}  that  "The  palatine's  court 
shall  consist  of  the  palatine  and  seven  proprietors,  wherein  nothing 
shall  be  acted  without  the  presence  and  consent  of  the  palatine  or  his 
deputy,  and  three  other  of  the  proprietors  or  their  deputies.  This 
court  shall  have  power  ....  to  pardon  all  offences."^  The  pro- 
prietors' courts  were  authorized  to  "mitigate  all  fines  and  suspend  all 
execution  in  criminal  causes,  either  before  or  after  sentence,  in  any  of 
the  other  inferior  courts  respectively."^  This  pretentious  form  of 
government  was  ill  adapted  to  a  frontier  community  and  was  never  put 
into  operation.  When  the  Carolinas  became  royal  colonies  the  pardon 
power  became  lodged  in  the  hands  of  the  royal  governors. 

In  1664,  the  year  that  New  York  was  granted  to  the  Duke  of  York, 
he  transferred  to  Lord  John  Berkeley  and  Sir  George  Carteret  that  part 
of  his  domain  which  now  comprises  New  Jersey.  These  proprietors  set 
up  a  government  in  the  same  year  known  as  "The  Concession  and 
Agreement  of  the  Lords  Proprietors  of  the  Province  of  New  Caesarea, 
or  New  Jersey,  to  and  with  all  and  Every  the  Adventurers  and  all  Such 
as  shall  Settle  or  Plant  There."  In  this  government  the  governor  and 
his  council  were  allowed  after  condemnation  to  issue  reprieves  until  the 
case  should  be  presented  with  a  copy  of  the  entire  trial  proceedings  to 
the  proprietors  who  would  either  pardon  or  command  the  execution  of 
the  sentence.  In  the  meantime  the  offender  was  to  be  kept  in  safe 
custody. -•  The  similarity  of  this  provision  regarding  clemency  with 
that  in  the  government  granted  by  the  proprietors  in  the  Carolinas  is 
very  evident. 

In  time  the  proprietors  divided  their  holdings  and  Berkeley  sold 
his  share,  the  western  part,  to  WUliam  Penn  and  other  Quakers.  In 
1676  was  drawn  up  the  "  Concessions  and  Agreements  of  the  Proprietors, 
Freeholders  and  Inhabitants  of  the  Province  of  New  Jersey,  in  America." 
These  concessions  which  were  the  fundamental  rights  of  this  province 
contain  a  curious  example  of  Quaker  legislation  regarding  clemency. 
The  provision  was  to  the  effect  that  any  person  who  should  prosecute  or 
prefer  any  indictment  or  information  against  others  for  any  personal 
injuries  or  other  criminal  matter  or  cause  (treason,  murder,  and  felony 

'  Thorpe,  Charters,  etc.,V,  2764.  3  ibid.,  V,  2778  (Art.  47). 

'  Ibid.,  V,  2776  (Art.  33).  "  Ibid.,  V,  2540. 


PARDONING  POWER  IN  THE  COLONIES  7 

only  excepted)  should  be  "master  of  his  own  process,  and  have  full 
power  to  forgive  and  remit  the  person  or  persons  offending  against  him 
or  herself  only,  as  well  before  as  after  judgment,  and  condemnation, 
and  pardon  and  remit  the  sentence,  fine  and  imprisonment  of  the  person 
or  persons  offending,  be  it  personal  or  other  whatsoever."' 

On  August  6,  1680,  the  Duke  of  York  made  a  second  grant  for  both 
the  land  and  government  of  West  Jersey  to  William  Penn  and  five  other 
persons.  In  this  grant  was  included  the  power  of  granting  pardons  and 
other  forms  of  clemency.^  Likewise  in  a  confirmation  of  March  14, 
1682,  to  twenty-four  proprietors  in  East  Jersey,  the  Duke  of  York 
granted  the  pardoning  power  to  these  proprietors.^  In  the  following 
year  they  set  up  a  government  known  as  the  Fundamental  Constitutions 
for  the  Province  of  East  New  Jersey  which  provided  that  the  power  of 
pardoning  should  never  be  made  use  of  but  by  the  consent  of  eighteen 
of  the  proprietors  or  their  proxies.  But  the  governor,  in  connection 
with  four  proprietors  who,  at  the  time,  were  to  be  judges  of  the  Court 
of  Appeals,  could  reprieve  any  person  after  the  day  of  execution  had  been 
set,  but  not  to  exceed  one  month.'*  In  1702  the  proprietors  of  East  and 
West  Jersey  surrendered  their  "pretended  right  of  Government"  to 
her  majesty  and  from  then  on  the  exercise  of  clemency  was  vested  in 
the  royal  governor. 

Any  reference  to  the  clemency  power  in  New  Hampshire  during  the 
colonial  period  is  extremely  meager.  The  only  one  seems  to  be  in  the 
"Commission  of  John  Cutt,  etc.,  constituting  a  President  and  Councell 
for  New  Hampshire,  1680,"  and  which  provides  that  in  all  criminal 
cases  where  the  punishment  extends  to  the  loss  of  life  or  limb,  wilful 
murder  only  excepted,  the  person  convicted  shall  either  be  sent  to 
England  with  a  statement  of  his  case,  or  execution  of  sentence  shall 
be  respited  until  the  case  can  be  reported  to  the  Privy  Council  and  a 
decision  reached. ^  When  New  Hampshire  became  a  royal  colony  the 
pardon  power  was  vested  in  the  same  governmental  authority  as  in 
other  royal  colonies. 

In  1 68 1  William  Penn  received  from  Charles  II  a  charter  for  the 
province  of  Pennsylvania.  Included  in  this  grant  was  a  delegation  to 
the  proprietor  and  his  heirs  of  full  power  to  remit,  release,  pardon,  and 
abolish,  whether  before  judgment  or  after,  all  crimes  and  offenses  with 
the  exception  of  treason  and  wilful  and  malicious  murder.     In  these 

'  Thorpe,  Charters,  etc.,  V,  2551  (chap.  xxi). 

^  Ibid.,  V,  2563-64.  4  Ibid.,  V,  2578. 

3  Ibid.,  V,  2573.  s  Ibid.,  IV,  2448. 


8        THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

instances  they  were  empowered  to  grant  reprieves  until  the  royal  will 
could  be  determined.^  From  then  until  the  Revolution  it  appears  that 
the  granting  of  clemency  was  placed  in  the  hands  of  the  Executive 
Council  of  the  province.  Since  Delaware  was  acquired  by  Penn  in 
1682  the  same  plan  for  administering  clemency  was  in  force  there  as  in 
Pennsylvania. 

The  Georgia  charter  granted  in  1732  conferred  authority  upon  the 
corporation  to  ''sell,  impose,  and  inflict  reasonable  pains  and  penalties 
upon  offenders,  and  to  mitigate  the  same  as  they  or  the  major  part  of 
them  present  shall  see  requisite."^  When  Georgia  became  a  royal 
colony  this  power  with  all  others  reverted  to  the  crown. 

In  the  settlement  of  the  English  continental  colonies  the  royal 
prerogative  to  grant  clemency  was  delegated  without  reservation  except 
in  three  instances.  When  William  Penn  received  his  charter  in  168 1 
the  proprietor,  under  its  terms,  could  pardon  in  all  cases  except  for 
treason  and  wilful  murder,  and  in  these  he  could  reprieve  until  the  royal 
will  could  be  ascertained.  An  identical  provision  occurs  in  the  com- 
mission which  Edmund  Andros  received  to  govern  the  dominion  of  New 
England  in  1688.  The  provisions  in  the  case  of  New  Hampshire  were 
of  such  a  character  that  the  criminal  either  was  to  be  sent  to  England 
or  a  respite  granted  until  the  case  could  be  reported  to  the  Privy  Council. 

It  seems  quite  clear  from  an  examination  of  the  colonial  charters 
that  the  crown  delegated  the  pardoning  power  in  the  colonies,  that  it 
was  lodged  in  the  hands  of  the  executive  authority,  with  the  assistants 
associated  sometimes,  and  that  slight  provision  existed  for  royal  inter- 
vention except  in  the  royal  colonies  where  the  governor  was  subject  to 
royal  instructions.  This  was  the  basis  upon  which  was  organized  the 
administration  of  clemency  in  the  American  states. 

'  Thorpe,  Charters,  etc.,  V,  3038.  ^  Ibid.,  II,  770. 


CHAPTER  II 

STATE  ORGANIZATION  OF  THE  PARDONING  POWER 

With  the  outbreak  of  the  American  Revolution  colonial  governments 
quickly  disappeared  and  were  succeeded  by  new  state  governments. 
As  the  executive  had  usually  exercised  the  power  of  clemency  in  the 
colonies  it  would  have  been  natural  to  intrust  the  same  power  to  the 
new  state  executives.'     Yet,  as  Jefferson  remarked: 

By  executive  powers  we  mean  no  reference  to  those  powers  exercised  under 
our  former  government  by  the  crown  as  its  prerogative,  nor  that  these  shall 
be  the  standard  of  what  may  or  may  not  be  deemed  the  rightful  powers  of  the 
governor.  We  give  him  those  powers  only,  which  are  necessary  to  execute  the 
laws  (and  administer  the  government)  and  which  are  not  in  their  nature  either 
legislative  or  judiciary.     The  application  of  this  idea  must  be  left  to  reason.^ 

But  at  this  time  the  executive  department  in  the  state  governments 
had  not  yet  gained  the  confidence  of  the  people.  It  brought  remem- 
brances of  royal  governors  and  their  opposition  to  colonial  rights.  The 
legislature,  particularly  the  lower  house,  had  been  the  champion  of  the 
people  in  colonial  days.  It  was  to  be  expected,  therefore,  that  most 
powers  of  government  would  be  concentrated  in  the  legislature. 

The  governor  was  universally  elected  by  the  legislature,  and,  except  in 
South  Carolina  and  Delaware,  his  term  of  office  was  restricted  to  one  year. 
In  addition,  in  the  six  southern  states,  restrictions  were  placed  upon  his  eligi- 
bility for  reelection.  In  every  state  there  was  an  executive  council,  chosen 
except  in  New  Jersey  by  the  legislature,  which  the  governor  was  required  to 
consult  on  all  important  matters,  and  which  in  most  cases  incidentally  served 

'  "The  fact  that  the  pardoning  power  necessarily  originated  with  the  sovereign 
power,  and  that  the  rulers  were  considered  the  sovereigns,  is  the  reason  why,  when 
jurists  came  to  treat  of  the  subject,  they  invariably  presented  it  as  an  attribute  indelibly 
inhering  in  the  crown.  The  monarch  alone  was  considered  the  indisputable  dispenser 
of  pardon;  and  this  again  is  the  historical  reason  why  we  have  always  granted  the 
pardoning  privilege  to  the  chief  executive;  because  he  stands,  if  any  one  visibly  does, 
in  the  place  of  the  monarch  of  other  nations;  forgetting  that  the  monarch  has  the 
pardoning  power,  not  because  he  is  the  chief  executive,  but  because  he  was  con- 
sidered the  sovereign — the  self-sufficient  power  from  which  all  others  flow;  while 
with  us  the  governor  or  president  has  but  a  delegated  power,  and  limited  sphere  of 
action,  which  by  no  means  implies  that  we  must  necessarily  or  naturally  delegate, 
along  with  the  executive  power,  also  the  pardoning  authority." — Licbcr,  Civil  Liberty 
and  Self -Government,  II,  147. 

"  Notes  on  Virginia,  Appendix  II. 

9 


lo      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

to  restrict  such  powers  of  appointment  and  pardon  as  he  might  possess.  In 
New  Jersey  the  upper  branch  of  the  legislature,  the  legislative  council  as  it  was 
called,  served  as  an  executive  council.* 

It  is  not  surprising,  therefore,  to  discover  that  in  New  Hampshire, 
Massachusetts,  New  Jersey,  Pennsylvania,  and  Virginia  the  pardoning 
power  could  be  exercised  only  by  the  governor  with  the  consent  of  the 
executive  council.^  Vermont,  although  not  one  of  the  original  states, 
provided  likewise  in  its  constitution  of  1777  for  the  exercise  of  the  pardon 
authority  by  the  governor  and  the  executive  council.^  Rhode  Island 
and  Connecticut  made  no  changes  in  the  administration  of  clemency 
and  retained  their  charter  form  of  government  for  some  years.  Georgia 
was  even  more  watchful  and  granted  power  to  the  governor  merely  to 
"reprieve  a  criminal  or  suspend  a  fine  until  the  meeting  of  the  assembly, 
v/ho  may  determine  therein  as  they  shall  judge  fit."'*  Only  in  the  states 
of  New  York,  Delaware,  Maryland,  North  Carolina,  and  South  Carolina 
was  the  pardon  authority  vested  in  the  governor  alone. 

As  a  result  of  state  constitutional  development  a  tendency  soon 
manifested  itself  in  the  direction  of  abolishing  the  executive  council 
and  increasing  the  powers  of  the  governor.  This  tendency  resulted  in 
the  enlargement  of  the  governor's  control  of  clemency  in  some  of  the 
states  which  had  previously  shared  it  with  the  executive  council  or  the 
legislature.  In  1789  Georgia  vested  it  in  the  hands  of  the  governor.^ 
This  was  also  done  by  Pennsylvania  in  1790^  and  by  Virginia  much 
later  in  1850.^ 

The  idea  that  the  proper  depository  of  clemency  was  the  executive 
department  gained  ground  rapidly.  This  was  particularly  true  in  the 
minds  of  the  const'tution  makers  of  new  states.  Of  the  thirty-five 
non-original  states  the  constitutions  of  twenty-six,  at  the  time  of  their 
admission  into  the  Union,  vested  the  pardoning  power  in  the  hands  of 
the  governor.  Of  the  remaining  nine  states,  Vermont,  in  1777,  and 
Maine,  in  1819,  placed  it  in  the  hands  of  the  governor  and  executive 
council;    Louisiana  (181 2)  in  the  hands  of  the  governor  and  senate; 

^  Holcombe,  State  Government  in  the  United  States,  p.  54. 

'  Constitutions  of  New  Hampshire,  1784;  Massachusetts,  1780,  Part  II,  chap,  ii, 
Sec.  I,  Art.  8;  New  Jersey,  1776,  Part  IX;  Pennsylvania,  1776,  sec.  20;  Virginia,  1776. 
3  Constitution  of  Vermont,  1777,  chap,  ii,  sec.  18. 
"  Constitution  of  Georgia,  1777,  Art.  19. 
5  Constitution  of  Georgia,  1789,  Art.  2,  sec.  7. 
*  Constitution  of  Pennsylvania,  1790,  Art.  2,  sec.  9. 
'  Constitution  of  Virginia,  1850,  Art.  5,  sec.  5. 


STATE  ORGANIZATION  OF  PARDONING  POWER  ii 

Montana  (1889)  and  South  Dakota  (1889)  associated  a  board  with  the 
governor  in  its  exercise;  and  Minnesota  (1858),  Nevada  (1864),  Idaho 
(1890),  and  Utah  (1896)  created  boards  of  pardon. 

Of  the  thirteen  original  states  only  New  Hampshire  has  retained 
intact  its  original  organization  for  the  administration  of  clemency. 
Because  of  increased  duties  assigned  to  the  governor,  an  increase  in 
applications  for  clemency  by  reason  of  enlarged  prison  populations,  and 
a  feeling  in  a  number  of  states  that  the  clemency  power  had  not  been 
wisely  administered  by  the  governor,  a  large  number  of  states  within 
the  last  quarter  of  a  century  have,  either  through  constitutional  or 
statutory  provision,  established  advisory  pardon  boards  for  the  purpose 
of  advising  or  even  restraining  the  governor  in  the  use  of  this  power. 

A  summary  of  the  original  organization  of  the  pardoning  authority 
in  each  state  with  subsequent  changes  in  organization  is  indicated  in 
the  following  table: 

ORGANIZATION   OF  PARDON  AUTHORITIES 

Alabama — 

Constitution  (181 9),  governor 

Constitution  (1901),  governor  and  advisory  board 

Arizona — 

Constitution  (1910),  governor 

Statute  (1913),  governor  and  advisory  board 
Arkansas — 

Constitution  (1836),  governor 

California — 

Constitution  (1849),  governor 
Statute  (191 5),  advisory  board  created 

Colorado — 

Constitution  (1876),  governor 
Statute  (1895),  advisory  board  created 

Connecticut — 

Charter  (1662)  and  Constitution  (1818),  governor  and  General  Assembly 
Statute  (1902),  pardon  board 

Delaware — 

Constitution  (1776),  chief  magistrate  or  president 

Constitution  (1792),  governor 

Constitution  (1897),  governor  and  advisory  board 

Florida — 

Constitution  (1838),  governor 
Constitution  (1868),  governor  and  board 


12      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Georgia — 

Constitution  (1777),  governor  and  General  Assembly 
Constitution  (1789),  governor 
Statute  (1897),  advisory  board  created 

Idaho — 

Constitution  (1889),  board 

Illinois — 

Constitution  (1818),  governor 
Statute  (1897),  advisory  board  created 

Statute  (1917),  Department  of  Public  Welfare  with  a  division  of  pardons 
and  paroles  established 

Indiana — 

Constitution  (1816),  governor 

Statute  (1903),  advisory  board  established 
Iowa — 

Constitution  (1846),  governor 

Code  (1913),  governor  and  advisory  board 

Statute  (191 9),  governor  and  advisory  board 

Kansas — 

Constitution  (1859),  governor 

General  Statutes  (1915),  governor  and  advisory  board 

Kentucky — 

Constitution  (1792),  governor 

Louisiana — 

Constitution  (181 2),  governor  and  Senate 
Constitution  (1879),  governor  and  advisory  board 

Maine — 

Constitution  (181 9),  governor  and  council 
Statute  (191 7),  advisory  board  added 

Maryland — 

Constitution  (1776),  governor 

Statute  (1918),  advisory  board  established. 

Massachusetts — 

Constitution  (1780),  governor  and  council 
Statutes  (1913,  1916,  1917),  advisory  board  added 

Michigan — 

Constitution  (1835),  governor 

Statute  (1893),  advisory  board  established 

Minnesota — 

Constitution  (1857),  board 


STATE  ORGANIZATION  OF  PARDONING  POWER  13 

Mississippi — 

Constitution  (1817),  governor 

Statute  (1916),  advisory  board  established 

Missouri — 

Constitution  (1820),  governor 

Statute  (1909),  pardon  attorney 

Statute  (191 7),  advisory  board  established 

Statute  (1921),  Department  of  Penal  Institutions  created 

Montana — 

Constitution  (1889),  governor  and  board 

Nebraska — 

Constitution  (1S66-67),  governor 

Revised  Statutes  (1913),  governor  and  advisory  board 

Statutes  (19 1 9),  governor  and  Department  of  Public  Safety 

Nevada — 

Constitution  (1864),  board 

New  Hampshire — 

Constitution  (1784),  president  and  council 
Constitution  (1792),  governor  and  council 

New  Jersey — 

Constitution  (1776),  governor  and  council 
Constitution  (1884),  court  of  pardons 

New  Mexico — 

Constitution  (191 2),  governor 
Statute  (191 5),  advisory  board  created 

New  York — 

Constitution  (1777),  governor 

Consolidated  Laws  (1918),  governor  and  advisory  board;  governor  may 
also  appoint  a  single  person  to  hold  clemency  hearings  and  report 
recommendations  to  him,  Consolidated  Laws  (1918) 

North  Carolina — 

Constitution  (1776),  governor 

Statute  (1917),  advisory  parole  board  created 

North  Dakota 

Constitution  (1889),  governor 
Constitutional  Amendment  (igoo),  board 

Ohio- 
Constitution  (1802),  governor 
Code  (191 2),  governor  and  advisory  board 
Statute  (191 7),  governor  and  board  of  clemency 


14      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Oklahoma — 

Constitution  (1907),  governor 

Statute  (1907-8),  board.    Declared  unconstitutional  in  ex  parte  Ridley, 

3  Okla.  Cr.  350. 
Statute  (1913),  advisory  board  established 
Statute  (191 6),  pardon  attorney  provided  for. 

Oregon — 

Constitution  (1857),  governor 

Statute  as  amended  (1915),  advisory  parole  board 

Pennsylvania — 

Constitution  (1776),  governor  and  council 
Constitution  (1790),  governor 
Constitution  (1873),  governor  and  board 

Rhode  Island — 

Charter  (1663),  governor  and  General  Assembly 

Constitution  (1842),  governor  covild  reprieve  and  the  Assembly  could 

pardon 
Constitutional  Amendment  (1854),  governor  and  Senate 

South  Carolina — 

Constitution  (1790),  governor 

Code  (191 2),  governor  and  advisory  board 

South  Dakota — 

Constitution   (1889),   board   for   serious  offenses;    governor  for   lesser 
offenses 

Tennessee — 

Constitution  (1796),  governor 

Code  (191 8),  governor  and  advisory  parole  board 

Texas — 

Constitution  (1835),  governor  and  council 

Constitution  (1836),  president 

Constitution  (1845),  governor 

Civil  Statutes  (191 1),  governor  and  board  of  pardon  advisers 

Utah- 
Constitution  (1895),  board 

Vermont — 

Constitution  (1777),  governor  and  council 
Constitution  (1786),  governor  and  council 
Constitutional  Amendment  (1836),  governor 

Public  Statutes  (1906),  governor  may  ask  three  judges  of  Supreme  Court 
to  sit  with  him 


STATE  ORGANIZATION  OF  PARDONING  POWER  15 

Virginia — 

Constitution  (1776),  governor  and  council 
Constitution  (1850),  governor 

Washington — 

Constitution  (1889),  governor 

Statute  (1897),  advisory  board  established 

Statute  (1899),  Repeals  Act  creating  advisory  board 

West  Virginia — 

Constitution  (i  861-1863),  governor 

Statutes  (1899,  1901),  advisory  board 

Statute  (1905),  Repeals  Act  creating  advisory  board 

Pardon  attorney 

Wisconsin — 

Constitution  (1848),  governor 

Wyoming — 

Constitution  (1889),  governor 

CompUed  Statutes  (1910),  governor  and  advisory  board 

Note. — This  table  does  not  attempt  to  indicate  the  form  of  pardon 
authority  under  all  the  constitutions  of  each  state,  since  the  same  form  was 
sometimes  retained  in  successive  constitutions.  It  shows  only  the  changes  in 
the  form  of  the  pardoning  authority  in  the  several  states. 

At  the  present  time  no  uniform  organization  or  type  of  pardon 
authority  exists  in  the  American  states.  Twelve  different  forms  for 
administering  the  pardon  power  may  be  distinguished.  These,  with 
the  states  included  in  each  group,  may  be  classified  as  follows: 

I.  The  governor  alone:   Arkansas,  Kentucky,  Virginia,  Wisconsin. 

II.  Governor  and  Senate:  Rhode  Island. 

III.  Governor  and  Executive  Council:  New  Hampshire. 

IV.  Advisory  Board  to  governor  and  Executive  Council:  Maine  and 
Massachusetts. 

V.  Governor  and  Advisory  Pardon  Board:  Alabama,  California,  Colorado, 
Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Louisiana,  Maryland,  Missouri, 
Michigan,  Mississippi,  Nebraska,  New  York,  North  CaroHna,  Ohio,  Oregon, 
South  Carolina,  Tennessee,  Texas,  Washington,  Wyoming. 

VI.  Governor  may  create  a  temporary  advisory  board  consisting  of  three 
members  of  Supreme  Court,  and  may  accept  or  reject  its  advice:  Vermont. 

VII.  Governor  and  Board  of  Pardons.  Governor  may  grant  clemency 
only  with  consent  of  Board,  of  which  he  is  not  a  member:  Arizona,  Delaware, 
Montana,  New  Mexico,  Pennsylvania. 


i6      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

VIII.  Board  exercises  the  granting  of  clemency.  The  governor  is  a 
member,  and  his  consent  is  necessary  to  grant  clemency:  Florida,  Nevada, 
New  Jersey,  Utah. 

IX.  Board  exercises  the  granting  of  clemency.  The  governor  is  a  member 
but  majority  action  governs,  regardless  of  whether  the  governor  is  of  the 
majority  or  of  the  minority:  Idaho. 

X.  Board.  Clemency  can  be  granted  only  by  unanimous  action  of  the 
Board  of  which  the  governor  is  a  member:  Connecticut,  Minnesota,  North 
Dakota. 

XL  Governor  and  pardon  attorney.  The  latter  acts  in  an  advisory  capac- 
ity only:  Oklahoma,  West  Virginia. 

XII.  Two  pardon  authorities  with  divided  responsibility.  Pardon  Board, 
of  which  governor  is  not  a  member,  has  full  authority  to  grant  clemency  in 
(a)  all  cases  of  capital  punishment,  imprisonment  for  life,  or  for  a  longer  term 
than  two  years,  (b)  in  cases  where  a  fine  exceeds  two  hundred  dollars.  Governor 
has  full  authority  to  grant  clemency  in  all  cases  where  punishment  or  fine  is 
less  than  that  stated  above:   South  Dakota. 

So  much  variation  exists  in  the  organization  of  the  pardoning 
authority  in  the  United  States  that  a  logical  classification  is  difficult 
without  unduly  enlarging  the  number  of  classes.  Even  in  the  foregoing 
classification  there  are  some  minor  differences  existing  within  some  of 
the  classes.  In  New  York,  in  addition  to  an  advisory  board,  the  governor 
may  appoint  a  person  to  conduct  a  hearing  in  an  application  for  clemency. 
Such  person  is  vested  with  power  to  secure  and  hear  testimony,  and 
upon  the  conclusion  of  the  hearing  all  testimony  and  recommendations 
are  forwarded  to  the  governor  for  his  action.' 

In  lowa,^  North  Carolina,^  Oregon,'*  and  Tennessee^  state  parole 
boards  act  as  pardon  boards.  In  Washington  pardons  are  recommended 
to  the  governor  by  the  prison  board  and  the  board  of  reformatory 
managers.  In  Colorado^  and  Wyoming'  the  governor  is  the  president 
of  the  board  which  investigates  all  applications  for  clemency  and  then 
lays  the  facts  and  recommendations  before  the  governor  for  his  action. 

'  Consolidated  Laws  of  New  York  (1918),  Vol.  VI,  sec.  262. 

2  Supplement  Code  of  Iowa  (1913),  sec.  57i8-a23. 

3  Public  Laws  of  North  Carolina,  Session  1917,  chap.  278,  sec.  i. 

4  General  Laws  of  Oregon,  1915,  chap.  176,  sec.  i. 

5  Tennessee,  Thompson's  Shannon's  Code  (1918),  sec.  75i6a-i5. 
*  Colorado  Statutes  (1914),  sec.  2048. 

7  Wyoming  Compiled  Statutes  (1910),  sees.  551-52. 


STATE  ORGANIZATION  OF  PARDONING  POWER  17 

Differences  exist  also  in  the  names  by  which  pardon  boards  are 
known.  In  New  Jersey  the  pardon  authority  is  designated  as  the 
Court  of  Pardons;  in  Ohio  it  is  the  Ohio  Board  of  Clemency;  in  Illinois 
it  is  the  Division  of  Pardons  and  Paroles  of  the  Department  of  Public 
Welfare;  in  Missouri  it  is  the  Department  of  Penal  Institutions;  and 
in  Nebraska  it  is  the  Secretary  of  the  Department  of  Public  Welfare. 
As  a  part  of  the  organized  pardon  machinery  two  states  have  established 
the  office  of  pardon  attorney  to  the  governor.' 

The  personnel  of  pardon  boards  is  of  a  most  varied  character,  there 
being  no  unity  of  opinion  as  to  the  type  of  individual  who  should  sit 
upon  such  a  board.  In  eleven  states  the  governor  is  a  member  of  such 
board.^  In  four  states  the  lieutenant  governor  is  a  member  of  such 
board,  but  in  no  state  do  both  the  governor  and  lieutenant  governor  sit 
on  this  board  ^  In  seven  states  the  secretary  of  state  is  made  a  member 
of  this  board,''  and  in  one  state  the  secretary  of  the  commonwealth  has 
a  seat. 5  The  state  auditor  is  a  member  in  five  states'^  and  the  state 
controller  in  one  state. ^  Two  states  use  the  superintendent  of  public 
instruction  as  a  member  of  the  pardon  board,*  and  formerly  a  third 
state  did  likewise.'  More  states  are  agreed  that  the  attorney-general 
should  have  membership  on  the  board  than  is  true  of  any  other  state 
officer.  There  are  fourteen  states  in  this  category.'"  This  is  probably 
due  to  a  feeling  that  the  attorney-general  will  better  safeguard  the 
interests  of  the  state  than  will  any  other  member  of  the  board. 

The  state  treasurer  is  a  member  of  the  board  in  two  states."  In 
four  states  the  chief  justice  of  the  supreme  court  is  a  member  of  the 
board,"  and  in  two  of  these  states  the  entire  membership  of  this  court 
is  given  representation  on  the  board  of  pardons.'^  In  one  state  a  judge 
of  the  Supreme  Court  of  Errors,  designated  by  the  judges  of  that  court, 

'  Oklahoma,  West  Virginia. 

^  Colorado,  Connecticut,  Florida,  Idaho,  Minnesota,  Nevada,  New  Jersey,  North 
Dakota,  Utah,  Vermont,  Wyoming. 

3  California,  Delaware,  Louisiana,  Pennsylvania. 

.4  Alabama,  Delaware,  Florida,  Idaho,  Montana,  South  Dakota,  Wyoming. 

5  Pennsylvania.  *  Alabama,  Delaware,  Alontana,  Oklahoma,  Wyoming. 

'  Florida.  *  Arizona,  Wyoming.  «  Oklahoma. 

"  Alabama,  Arizona,  California,  Florida,  Idaho,  Louisiana,  Montana,  Minnesota, 
Nevada,  North  Carolina,  North  Dakota,  Pennsylvania,  South  Dakota,  Utah. 

"  Delaware,  Wyoming. 

"  Minnesota,  Nevada,  North  Dakota,  Utah.  '3  Nevada,  Utah. 


i8      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

sits  on  the  board. ^  In  two  states  the  chancellor  is  a  member,^  and  in 
one  of  these  states  six  judges  of  the  Court  of  Errors  are  also  members 
of  the  pardon  board.^  Also  in  one  state  the  governor  may  request  to 
sit  with  him  not  more  than  three  judges  of  the  Supreme  Court,  such  as 
he  may  select.  These  are  to  advise  him  in  matters  of  clemency.''  Two 
states  consider  it  desirable  to  have  the  trial  judge  sit  as  a  member  of 
the  board.5  It  is  quite  evident  that  a  number  of  states  have  felt  that 
the  state  judiciary  should  be  represented  in  some  form  or  other  on  the 
board  of  pardons. 

In  another  group  of  states  the  policy  has  been  followed  of  placing 
on  the  pardon  board  some  individual  who  is  in  close  contact  with  appli- 
cants for  clemency  during  their  period  of  incarceration.  In  one  state 
the  wardens  of  the  two  state  prisons  are  members  of  the  board.^  The 
superintendent  of  prisons  is  a  member  in  two  states,^  while  in  one  state 
the  chairman  of  the  board  of  directors  of  the  state  prison^  and  the 
chairman  of  the  board  of  state  charities'  function  in  this  capacity. 

In  one  state  the  commissioner  of  agriculture  is  a  member  of  the 
board,'"  and  in  another  state  a  similar  official  was  likewise  represented 
on  the  board  until  the  statute  creating  the  board  was  declared  uncon- 
stitutional." 

The  membership  of  the  boards  thus  far  described  consists  wholly 
of  members  who  are  state  officers,  most  of  whom  are  also  elective  officers. 
They  are  members  of  pardon  boards  ex  officio.  But  some  states  have 
made  provision  for  the  representation  of  private  citizens  on  pardon 
boards.  In  one  state  it  is  provided  that  the  chairman  of  the  board  shall 
be  a  citizen  chosen  by  the  other  two  members."  In  another  state  four 
members  are  lay  citizens  appointed  by  the  governor. ^^  In  Connecticut 
there  are  four  lay  members,  one  a  physician,  appointed  by  the  governor 
with  the  consent  of  the  senate.  In  Georgia  clemency  is  vested  in  a 
prison  commission  of  three  members  elected  by  the  voters.  The  Indiana 
board  consists  of  three  members  appointed  by  the  governor.  The  Iowa 
parole  board,  which  is  the  advisory  pardon  board,  consists  of  three 
members  (one  of  whom  must  be  an  attorney),  appointed  by  the  governor, 
and  only  two  members  may  belong  to  the  same  political  party.     There 

'  Connecticut.  *  California. 

'  Delaware,  New  Jersey.  '  Illinois,  New  York. 

3  New  Jersey.  *  North  Carolina.  "  Oklahoma. 

■t  Vermont.  » North  Carolina.  "  Arizona. 

5  Louisiana,  South  Dakota.  '"  Florida.  '^  Colorado. 


STATE  ORGANIZATION  OF  PARDONING  POWER  19 

are  also  some  eleven  other  states  whose  clemency  boards  consist  wholly 
or  partially  of  private  citizens  appointed  by  the  governor/ 

The  system  of  state  reorganization  in  Illinois  provides  for  a  depart- 
ment of  public  welfare,  and  within  this  department  is  the  division  of 
pardons  and  paroles  which  deals  with  all  matters  of  clemency.  The 
superintendent  of  the  division,  the  superintendent  of  prisons,  and  the 
assistant  director  of  the  department  of  public  welfare  constitute,  in 
effect,  a  clemency  board. 

Under  the  system  of  state  reorganization  in  Nebraska  the  governor 
possesses  the  power  to  pardon  and  grant  commutation,  while  the  secre- 
tary of  the  department  of  public  welfare  has  the  power  to  parole.  The 
governor  seeks  the  advice  of  the  secretary,  however,  in  most  cases  of 
pardon  and  commutation. 

The  personnel  of  pardon  boards  in  the  various  states  is  set  forth  in 
the  following  table: 

PERSONNEL  OF  PARDON  BOARDS 

Alabama — Attorney-general,  secretary  of  state,  state  auditor 

Arizona — State  superintendent  of  public  instruction,  attorney-general,  third 

citizen  (chairman)  to  be  chosen  by  the  two  former  officials 
Arkansas — No  board,  vested  solely  in  the  governor 
California — Lieutenant  governor,  attorney-general,  warden  of  San  Quentin 

Prison,  warden  of  Folsom  Prison 

Colorado — Governor  (president  of  board),  four  private  citizens  appointed  by 
governor 

Connecticut — Governor,  judge  of  Supreme  Court  of  Errors  designated  by  the 
judges  of  that  court,  four  private  citizens  (one  a  physician)  appointed  by 
governor  with  consent  of  Senate 

Delaware — Chancellor,  lieutenant  governor,  secretary  of  state,  state  treasurer, 
auditor  of  accounts 

Florida — Governor,  secretary  of  state,  controller,  attorney-general,  commis- 
sioner of  agriculture 

Georgia — Prison  Commission  of  three  members  elected  by  voters 

Idaho — Governor,  secretary  of  state,  attorney-general 

Illinois — Division  of  Pardons  and  Paroles.  In  effect  the  superintendent  of 
Division  of  Pardons  and  Paroles,  the  superintendent  of  Prisons,  and  the 
assistant  director  of  Department  of  Public  Welfare  constitute  the  board 

Indiana — Three  private  citizens  appointed  by  governor 

'  Maine,  Maryland,  Massachusetts,  Missouri,  Michigan,  Mississippi,  New  York, 
North  Dakota,  Ohio,  South  Carolina,  Texas. 


20      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Iowa — Three  private  citizens  (one  an  attorney)  appointed  by  governor;  not 
more  than  two  may  belong  to  the  same  political  party 

Kansas — Three  persons  (one  an  attorney)  appointed  by  governor  with  consent 

of  Senate 
Kentucky — No  board,  clemency  vested  solely  in  the  governor 
Louisiana — Lieutenant  governor,   attorney-general,  presiding  judge  of  trial 

court 
Maine — Board  of  Prison  Commissioners  consisting  of  three  members  appointed 

by  governor  with  consent  of  council 

Maryland — Three  members  appointed  by  governor  with  consent  of  Senate 

Massachusetts — Board  of  Parole  of  Massachusetts  Bureau  of  Prisons  consisting 
of  three  members  appointed  by  governor  with  consent  of  council 

Michigan — Three  residents  appointed  by  governor,  one  of  whom  must  be  an 
attorney  and  one  a  physician 

Minnesota — Governor,  attorney-general,  chief  justice  of  Supreme  Court 

Mississippi — Five  members  appointed  by  governor 

Missouri — Department  of  Penal  Institutions  consisting  of  five  members 
appointed  by  governor  with  consent  of  Senate,  not  more  than  three  mem- 
bers to  belong  to  same  political  party 

Montana — Secretary  of  state,  attorney  general,  state  auditor 

Nebraska — Secretary  of  Department  of  Public  Welfare 

Nevada — Governor,  justices  of  Supreme  Court,  attorney-general 

New  Hampshire — Governor  and  executive  council;  this  latter  body  consists  of 
two  members  from  the  Senate  and  three  members  from  House  of  Repre- 
sentatives 

New  Jersey — Governor,  chancellor,  six  judges  of  Court  of  Errors 

New  Mexico — Board  of  Penitentiary  Commissioners  consisting  of  five  members 
appointed  by  governor 

New  York — Board  of  Parole  is  advisory  pardon  board:  it  consists  of  three 
persons,  superintendent  of  prisons  and  two  other  members  appointed  by 
governor  with  consent  of  Senate;  governor  may  also  appoint  other  indi- 
viduals to  conduct  hearings  and  make  report  to  him 

North  Carolina — Advisory  Board  of  Parole  consisting  of  attorney- gen  era!, 
chairman  of  Board  of  Directors  of  state  prison,  chairman  of  Board  of 
State  Charities 

North  Dakota — Governor,  chief  justice  of  Supreme  Court,  attorney-general, 
two  electors  appointed  by  governor 

Ohio — Board  of  clemency  consisting  of  two  members  appointed  by  governor 

Oklahoma — Pardon  attorney  who  is  an  assistant  attorney-general  of  the  state 


STATE  ORGANIZATION  OF  PARDONING  POWER  21 

Oregon — Superintendent  of  state  prison,  governor's  secretary,  state  parole 
officer,  and  two  members  appointed  by  governor 

Pennsylvania — Lieutenant  governor,  secretary  of  commonwealth,  attorney- 
general,  secretary  of  internal  affairs 

Rhode  Island — Governor  and  Senate 

South  Carolina — Three  members,  who  may  hold  no  other  office  than  notary 
public,  appointed  by  governor 

South  Dakota — Presiding  judge,  secretary  of  state,  attorney-general 

Tennessee — Board  for  Administration  of  State  Institutions  exercises  parole 
power.     It  consists  of  governor,  state  treasurer,  and  a  general  manager 

Texas — Board  of  Pardon  Advisers  consisting  of  two  voters  appointed  by 
governor 

Utah — Governor,  justices  of  Supreme  Court,  attorney-general 

Vermont — Governor  may  request  to  sit  with  him  not  more  than  three  judges 
of  Supreme  Court,  such  as  he  may  select 

Virginia — No  board,  clemency  vested  solely  in  the  governor 

Washington — Prison  Board 

West  Virginia — Pardon  attorney 

Wisconsin — No  board,  clemency  vested  solely  in  the  governor 

Wyoming — Governor,  secretary  of  state,  state  treasurer,  state  auditor,  state 
superintendent  of  public  instruction 

In  a  number  of  states  the  clemency  power  is  vested  in  two  distinct 
sets  of  authorities.  Particularly  is  it  customary  in  such  states  to  intrust 
to  one  body  the  consideration  of  applications  for  parole,  while  other  forms 
of  clemency  are  considered  by  the  other  body.  The  State  Penitentiary 
Board  in  Arkansas,  the  State  Board  of  Prison  Directors  in  California, 
and  a  parole  board  in  Connecticut  serve  as  parole  authorities  distinct 
from  the  pardoning  authorities  in  these  states.  In  Indiana  there  is  a 
Board  of  Commissioners  of  Parole  Prisoners  for  each  separate  state 
prison.  Kansas,  Kentucky,  Louisiana,  and  Minnesota  have  parole 
boards  which  are  also  distinct  from  the  authorities  that  deal  with  other 
forms  of  clemency  in  these  states.  In  Missouri  boards  of  parole  are 
established  in  every  judicial  circuit  in  the  state  composed  of  a  single 
county,  and  having  a  criminal  court  therein,  and  wherein  there  is  a  city 
of  from  200,000  to  500,000  inhabitants.  Boards  of  parole  are  also 
established  in  Missouri  in  counties  of  from  80,000  to  200,000  inhabitants 
adjoining  cities  of  more  than  500,000  inhabitants. 

The  parole  board  in  Montana  is  distinct  from  the  State  Board  of 
Pardons.     In  New  Jersey  the  Board  of  Inspectors  of  Prisons  recommends 


22      TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

paroles;  this  is  also  true  in  Pennsylvania  where  such  a  board  is  connected 
with  each  prison.  North  Carolina,  North  Dakota,  Rhode  Island, 
Tennessee,  Texas,  Virginia,  Washington,  West  Virginia,  and  Wisconsin 
also  have  parole  boards  that  are  distinct  from  other  pardon  authorities 
in  these  states. 

The  composition  of  these  parole  boards  varies  somewhat  but  most 
frequently  the  membership  consists  of  the  penitentiary  directors  or 
commissioners  with  the  warden  associated.  This  kind  of  a  board,  it  is 
felt,  is  most  conversant  with  the  prison  record  of  applicants  for  parole 
and  can  therefore  intelligently  determine  when  parole  should  be  granted. 


CHAPTER  III 
ADMINISTRATION  AND  OPERATION  OF  PARDON  AUTHORITIES 

CRITICISM   OF  PARDON   AUTHORITIES 

As  previously  stated,  at  one  period  in  our  history  the  pardoning 
power  was  vested  almost  exclusively  in  the  governor.'  But  new  adminis- 
trative duties  placed  upon  him,  and  also  an  increase  in  requests  for  clem- 
ency because  of  an  enlarged  prison  population  made  it  impossible  for 
him  to  give  the  detailed  attention  to  clemency  problems  which  was 
demanded.  Added  to  these  reasons  was  the  feeling  which  was  quite 
prevalent  that  some  executives  had  administered  this  power  with  such 
laxness  that  the  system  needed  further  regulation  and  safeguarding. 
The  debates  in  a  number  of  state  constitutional  conventions  furnish 
clear  evidence  of  this  feeling. 

The  discussion  on  this  question  in  the  California  Constitutional 
Convention  of  1878-79  is  a  typical  illustration.  From  the  proceedings 
the  following  extracts  are  noted : 

Mr.  Barbour  said  the  tenth  resolution  of  the  platform  of  the  Workingmen's 
party,  on  which  he  was  elected,  provided  that  the  pardoning  power  then  vested 
in  the  governor  should  be  abolished.  Nearly  one  half  of  the  people  voted  upon 
that  proposition  in  voting  for  the  candidates  of  the  Workingmen's  party,  and 
there  was  no  reason  to  presume  that  the  other  half  were  opposed  to  it.^ 

Mr.  Shafter  stated  that  governors  had  often  been  influenced  by  sentiment 
and  emotion.  There  had  been  great  abuses  in  this  state  and  elsewhere  as 
everybody  understood.^ 

Mr.  Gregg  and  Mr.  Wickes  said  that  the  pardoning  power  in  the  past  had 
been  stretched  to  its  limits.'' 

Mr.  Barry  of  the  Committee  on  Pardons  said  that  this  power  had  been 
abused  in  the  past  because  of  pressure  put  on  the  governor. s 

Mr.  Caples  argued  that  too  much  discretion  was  granted  to  the  governor 
and  that  it  should  be  limited.' 

'  Supra,  p.  10. 

'  Debates  and  Proceedings,  California  Constitutional  Convention  (1878-79),  I,  372. 
3  Ibid.,  p.  274.  ^Ibid.,  p.  277.  s  Ibid.,  p.  278. 

<'Ibid.,  p.  278. 

23 


24      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Mr.  White  said  that  more  time  of  the  governors  had  been  used  in  hearing 
apphcations  and  soHcitations  for  pardons  than  on  any  other  duty.  Each 
governor  had  requested  that  this  power  be  taken  out  of  his  hands.' 

Mr.  Smith,  of  San  Francisco,  said  that  there  were  entirely  too  many  pardons 
and  therefore  he  was  in  favor  of  abohshing  the  pardon  power  altogether.  The 
governor  should  be  the  last  man  to  possess  this  power  because  he  is  generally 
too  tender.^" 

It  is  true  that  some  members  in  the  convention  denied  or  minimized 
these  assertions  but  it  is  evident  that  a  feeling  prevailed  that  the 
clemency  pov^er  had  been  abused  in  the  past. 

In  the  Illinois  Constitutional  Convention  of  1870  there  were  asser- 
tions that  the  pardon  power  had  been  improperly  used. 

Mr.  Church  said  that  some  fifteen  years  previous  the  pardoning  power  had 
been  used  very  indiscriminately  by  Governor  Matteson.^ 

Mr.  Goodhue  thought  that  past  diflficiilties  resulted  because  petitions  for 
pardons  had  been  so  numerous,  and  pressure  exerted  had  been  so  great  that  it 
had  been  impossible  for  the  governor  to  give  these  petitions  the  consideration 
and  deliberations  that  they  required.-' 

Mr.  Medill  favored  the  section  as  reported  by  the  committee  on  the 
Executive  Department  because,  in  his  judgment,  it  properly  limited  the 
powers  of  the  governor  in  this  matter.^ 

As  a  result  of  the  charges  of  abuse  a  resolution  was  introduced  and 
carried  that  the  warden  of  the  penitentiary  be  required  to  furnish  a 
list  of  all  convicts  pardoned  from  i860  to  1870.^  On  January  31,  1870, 
the  governor  submitted  such  a  list  but  the  statement  covered  the  pardons 
granted  from  January  11,  1869,  to  January  11,  1870,  only.^ 

STATISTICS    ON   PARDONS   IN   ILLINOIS,    1869-1870 

Persons  in  penitentiary,  January  II,  1869 1,264 

Persons  received,  December  i,  1868,  to  December  i,  1869       ....      546 

Pardoned  from  penitentiary  and  county  jails 108 

Number  of  apphcations  for  pardon  refused 2>S^ 

Offenses  of  convicts  pardoned :  assault  with  intent  to  commit  robbery,  i ; 
assault  with  intent  to  commit  murder,  5 ;  arson,  i ;  counterfeiting,  i ;  burglary, 
'  Debates  and  Proceedings,  California  Constitutional  Convention  (1878-79),  I,  275. 
=  Ibid.,  p.  368. 

3  Debates  and  Proceedings,  Illinois  Constitutional  Convention  (1870),  I,  789. 
t  Ibid.,  p.  787.  ^  Ibid.,  p.  154- 

5  Ibid.,  p.  786.  7  Ibid.,  pp.  330-41,  343- 


ADMINISTRATION  OF  PARDON  AUTHORITIES  25 

14;    forgery,  i;    horse-stealing,  i;    incest,  i;    larceny,  48;    murder,  4;    man- 
slaughter, 12;   rape,  7;   refusing  votes,  2;   robbery,  9;   perjury,  i. 

The  pardons  were  granted  on  recommendations  of  either  the  trial  jury, 
judge,  prosecuting  attorney,  influential  citizens,  state  or  county  officials,  etc. 
The  names  of  the  most  prominent  persons  making  the  recommendations  were 
printed  in  each  case.  No  standard  seemed  to  exist  as  a  basis  for  granting  the 
pardons. 

In  Illinois  from  1856  to  1876  there  were  92  persons  sentenced  to 
life  terms.  During  this  period  10  died  and  36  were  pardoned.  Only 
one  of  the  whole  46  had  served  more  than  10  years.' 

In  the  Iowa  Constitutional  Convention  in  1857,  Mr.  Clarke  moved 
to  amend  the  section  relating  to  the  pardoning  power  so  that  it  would 
require  the  governor  to  give  to  the  legislature  the  reasons  for  each  pardon 
granted.  This,  he  argued,  would  prevent  the  improper  exercise  of  the 
pardoning  power  "as  it  prevails  in  many  states."^ 

Discussion  in  the  Massachusetts  Constitutional  Convention  in  1853 
by  Mr.  Rufus  Choate,^  Mr.  Thompson,''  and  Mr.  Bradbury^  would  seem 
to  indicate  that  the  pardoning  power  in  Massachusetts  had,  on  the 
contrary,  been  used  with  the  greatest  discretion  and  with  due  regard 
to  both  firmness  and  humanity. 

In  the  Kentucky  Constitutional  Convention  of  1890,  Mr.  Ramsey 
asserted  that  in  Kentucky  from  December  3,  1879,  to  March  23,  1881, 
there  were  845  pardons  granted  by  the  governor.  Of  these  129  were 
granted  without  any  reason  being  given.  In  390  cases  pardons  were 
granted  to  persons  convicted  of  kukluxing  in  Laurence  County  upon  the 
request  of  the  judge  of  that  district.  Mr.  Ramsey  said  only  447  pardons 
were  granted  in  Michigan  during  seventeen  years.* 

Likewise  in  Pennsylvania  dissatisfaction  was  expressed  at  different 
times  with  the  lodgment  of  the  pardoning  power  in  the  governor,  and 
assertions  were  made  that  the  power  was  not  always  wisely  exercised. 
The  constitution  of  1790  came  in  for  criticism  soon  after  its  adoption 
because  it  gave  this  power  exclusively  to  the  governor. 

Community  sentiment,  intimacy  with  daily  affairs,  neighborhood  knowl- 
edge of  crimes   committed,   familiarity   with  criminal   trials  and   constant 

'Russell  Gray,  "The  Use  and  Abuse  of  the  Pardoning  Power,"  International 
Review,  VII,  502-3. 

"  Iowa  Constitutional  Debates  (1857),  I,  587. 

3  Massachusetts  Constitutional  Debates  (1853),  I,  968. 

*  Ibid.,  p.  976.  5  Ibid.,  p.  973. 

^  Debates  of  Kentucky  Constitutional  Convention  (1890),  I,  1269. 


26      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

approachability  made  governors  susceptible  to  deception,  false  sympathetic 
evidence,  and  the  obligations  or  feelings  of  friendliness  founded  upon  political 
or  personal  considerations.  The  wisdom  of  the  constitution-makers  had  not 
been  sufficient  to  anticipate  the  resulting  abuses,  but  well  grounded  and 
frequent  complaints  followed  within  a  few  years. ^ 

In  an  article  published  in  1820  by  Dr.  James  Mease,  who  was  a 
prominent  member  of  the  American  Philosophical  Society,  he  said: 

I  have  no  hesitation  in  saying  that  the  continual  and  monstrous  abuse  by 
the  governors  of  this  great  privilege  is  a  very  powerful  cause  of  the  increase  of 
crimes  and  that  the  best  code  of  penal  laws  that  can  be  framed  will  be  defeated 

unless  it  is  checked Governors  have  much  to  answer  for  who  thus 

defeat  the  laws  and  offer  a  premium  for  vice.^ 

This  general  dissatisfaction  was  shown  in  the  constitutional  conven- 
tion that  met  in  1837  and  which  requested  from  the  secretary  of  the 
commonwealth  a  statement  showing  the  extent  of  the  use  of  the  clemency 
power  under  the  constitution  of  1790.     This  statement  when  furnished 

CLEMENCY  GRANTED  IN  PENNSYLVANIA  DURING  PERIOD  OF 
CONSTITUTION  OF  1790* 


Governor 

Murder 

High 
Treason 

Imprison- 
ment 

Fines  and 
Forfeitures 

Militia 
Fines 

Thomas  Mifflin 

6 
I 

I 

14 

I 

1,061 
990 
431 
303 
724 
424 
17 

735 
881 

525 

118 

66 

100 

87 

14 

Thomas  M.  Kean 

Simon  Snyder 

124 

William  Findley 

640 

Joseph  Hiester        .    ... 

439 
7 

J.  Andrew  Shulze 

George  Wolf 

3 

I 

Joseph  Ritner 

371 

Total 

12 

15 

4,461 

2,526 

1,590 

*  Proceedings  and  Debates  of  Pennsylvania  Constitutional  Convention  (1837),  II,  56. 


showed  that  there  had  been  53  executions  and  27  pardons  or  remissions 
for  murder  and  high  treason,  the  penalty  for  these  offenses  being  death. 
It  also  showed  there  had  been  4,461  pardons  and  remissions  in  cases  of 
imprisonment,  2,526  in  cases  of  fines  and  forfeitures,  and  1,590  in  cases 
of  militia  fines. ^ 

'  Smithers  and  Thorn,  Executive  Clemency  in  Pennsylvania.,  p.  35. 
^  Vol.  LII  of  Pamphlets,  Philadelphia  Law  Association  Library. 
^Proceedings   atid   Debates   of  Pennsylvania   Constitutional   Convention  (1837), 
II,  s6. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  27 

The  number  of  persons  executed  under  the  above-named  governors 
was  as  follows:  Thomas  Mifflin,  12;  Thomas  M.  Kean,  11;  Simon 
Snyder,  9;  William  Findley,  4,  Joseph  Hiester,  4;  J.  Andrew  Shulze,  6; 
George  Wolf,  6;  Joseph  Ritner,  i;   total,  53. 

In  spite  of  the  criticism  provoked  by  this  condition  no  change  was 
made  in  the  clemency  authority  by  the  convention.  In  fact  the  new 
constitution  of  1838  used  the  identical  words  of  the  constitution  of  1790 
in  describing  the  pardoning  power.  "The  amended  constitution, 
however,  was  not  popular  and  the  campaign  charges  that  the  governor's 
power  of  pardon  was  left  untrammelled  for  political  reasons  probably 
had  something  to  do  with  the  small  majority  of  twelve  hundred  and 
twelve  votes  which  the  new  organic  law  received."^  The  discussion  in 
the  convention  helped  to  create  a  sentiment,  however,  which  resulted 
in  a  curtailment  of  the  use  of  this  power  by  several  successive  governors. 
From  1839  to  1861  six  governors  granted  but  560  pardons.^ 

It  was  the  general  belief  that  the  new  criminal  code  of  i860,  in 
connection  with  some  supplementary  legislation, 

would  greatly  reduce  the  number  of  pardons  because  the  punishments  were  on 
the  whole  milder  and  the  principle  of  discretion  within  a  maximum  enabled 
the  judges  to  temper  sentences  according  to  those  merciful  features  which 
formerly  could  receive  recognition  only  at  the  hands  of  the  governor.  The 
expectation,  however,  was  not  realized,  thereby  causing  a  general  conviction 
among  conservative  citizens  that  the  fault  lay  in  the  method  of  exercising  the 
power.  This  strongly  revived  the  former  movement  against  the  one-man 
power.  The  demand  for  a  new  constitutional  provision  which  then  began  to 
assume  definite  proportions  permitted  concentration  of  effort  to  such  an 
extent  that  when  the  Act  of  April  11,  1872,  providing  for  the  calling  of  a 
convention  was  passed  there  was  a  very  general  understanding  that  executive 
clemency  would  receive  special  attention. ■J 

The  debates  in  the  convention  were  chiefly  concerned  with  charges 
of  the  abuse  of  the  pardoning  power  by  the  governor,  a  defense  of  past 
governers,  and  a  discussion  as  to  how  this  authority  should  be  constituted 
in  the.  new  constitution.  Former  governors,  Bigler  and  Curtin,  who 
were  members  of  the  convention,  explained  in  the  course  of  the  debates 
the  enormous  pressure  to  which  they  had  been  subjected  to  grant  pardons, 
and  the  great  amount  of  time  required  to  give  attention  to  this  matter. 

Mr.  Barclay  offered  a  resolution  that  the  secretary  of  the  common- 
wealth furnish  the  convention  with  a  list  of  all  pardons  obtained  from 

'  Smithers  and  Thorn,  Executive  Clemency  in  Pennsylvania,  p.  37. 
'  Ibid.,  pp.  37-38.  J  Ibid.,  p.  40. 


28      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

the  different  governors  of  the  state  from  January  i,  1838,  to  date, 
with  the  names  of  the  persons  pardoned,  the  nature  of  their  offenses, 
the  time  when  such  persons  were  convicted,  if  known,  and  the  times 
when  such  persons  were  pardoned/ 

This  resolution  failed  of  passage  but  J.  N.  Purviance  submitted  the 
following  statistics  showing  the  average  number  of  pardons  granted 
annually  under  previous  governors.^ 

Governors  ^^^^Ye"'^"        Governors  """''^^l^^''''' 

Mifflin 132  Porter 120 

M'Kean 212  Shunk 81 

Snyder 177  Johnson 126 

Findley 434  Bigler 108 

Heister 262  Pollock 53 

Schultz 136  Packer 72 

Wolf 83  Curtin 127 

Ritner 160  Geary 71 

But  Mr.  Armstrong  in  commenting  on  these  statistics  asserted 
that  until  the  Act  of  i860  was  passed  a  sentence  served  to  the  end  was 
followed  by  political  disability  and  therefore  many  pardons  were  granted 
a  few  days  before  the  expiration  of  a  sentence  in  order  that  political 
disability  might  be  removed.  This  condition  was  corrected  by  the 
Act  of  1860.3 

The  foregoing  discussion  regarding  the  exercise  of  the  pardoning 
power  in  Pennsylvania  is  typical  of  the  feeling  that  undue  pressure  by 
interested  parties  and  the  press  of  other  public  duties  devolving  upon 
the  governor  made  it  impossible  for  him  to  exercise  this  power  without 
some  capable  assistance.  Evidence  of  a  similar  feeling  of  dissatisfaction 
with  early  conditions  in  Indiana  is  shown  by  the  following: 

The  new  constitution  differs  from  the  old  in  few  points  more  widely  than 
upon  the  pardoning  power.  Two  lines  in  the  old  in  place  of  half  a  page  in  the 
new.  It  merely  said  that  the  governor  "shall  have  power  to  remit  fines  and 
forfeitures,  grant  reprieves  and  pardons,  except  in  cases  of  impeachment." 
We  know  the  object  of  the  change.  The  granting  of  pardons,  remissions,  etc., 
had  become  an  abuse,  and  it  was  the  intention  to  arrest  that  abuse.'' 

That  dissatisfaction  prevailed  in  Arizona  is  indicated  from  an 
extract  from  a  judicial  decision. 

It  is  a  matter  of  common  knowledge  that  at  the  time  or  just  prior  to  the 
convening  of  the  constitutional  convention  considerable  feeling  and  criticism 

^Debates  of  Pennsylvania  Constitutional  Convention  (1872-73),  1,91. 

^  Ibid.,  II,  376.  J  Ibid.,  p.  382.  ^  State  v.  Dunning,  9  Ind.  23  (1857). 


ADMINISTRATION  OF  PARDON  AUTHORITIES  29 

were  indulged  by  the  people  of  the  territory  over  what  was  generally  thought  to 
be  an  abuse  of  the  pardoning  power,  and  no  one  knew  it  better  than  the  mem- 
bers of  the  convention.' 

An  attempt  was  made  to  amend  the  New  York  constitution  in  1913 
so  as  to  create  a  Court  of  Pardons  to  consist  of  the  governor,  chief 
judge,  and  three  judges  of  the  Court  of  Appeals  annually  designated 
by  the  governor.^  It  is  not  certain  that  this  attempt  was  due  to  dis- 
satisfaction with  the  present  system. 

The  view  suggests  itself:  Could  a  state  executive,  in  any  of  these 
circumstances,  have  been  impeached  for  misuse  of  the  pardoning  power  ? 
It  seems  that  no  attempt  has  ever  been  made  to  do  so,  and  the  only 
judicial  dicta  which  infers  that  such  action  may  be  taken  is  found  in 
a  few  rather  recent  Oklahoma  decisions.^  On  the  other  hand  there  is 
considerable  opinion  that  there  is  no  judicial  right,  unless  granted  by 
law,  or  unless  fraud  has  entered  into  a  case,  to  review  or  impugn  the 
motives  or  opinions  of  the  executive  in  granting  clemency.'' 

None  the  less,  a  prominent  student  of  criminal  law  remarks: 

In  popular  writings  we  often  meet  with  injuriously  false  views  on  this 
subject.  Nothing  can  be  more  pernicious  than  the  opinion,  sometimes  afloat, 
which  assigns  to  the  President  or  Governor  the  authority  to  pardon  without 
limit  and  denies  to  the  impeaching  power  the  right  to  interfere.  The  granting 
of  pardons  is  discretionary  in  its  nature;  therefore  it  is  necessarily  the  more 
open  to  control  by  the  impeaching  power.  If  it  comes  to  be  understood  that 
a  single  man,  intrusted  with  the  high  function  of  pardon,  can  open  all  the 
prisons  of  the  country  and  let  every  guilty  person  go  free,  thus  at  a  blow  striking 
down  the  law  itself,  and  not  be  himself  punished  for  the  high  misdemeanor 
the  most  disastrous  consequences  to  liberty  and  law  will  sooner  or  later  follow. 
Such  a  conclusion  is  itself  the  annihilation  of  law,  and  only  upon  law  can 
liberty  repose.  Still  this  sort  of  executive  abuse  will  not  authorize  the  courts 
to  decline  giving  effect  to  the  executive  pardon. s 

LIMIT.'^TIONS   UPON   PARDON    AUTHORITIES 

In  view  of  such  a  widespread  demand  for  the  removal  of  abuse  in 
the  exercise  of  the  pardoning  power  it  is  of  interest  to  note  some  of  the 

'  Laird  v.  Sims,  16  Ariz.  521  (191 5). 

'  New  York  State  Constitution  Annotated,  Part  II,  pp.  84-85. 

^  "An  abuse  of  the  pardoning  power  may  be  so  great  as  to  warrant  an  impeach- 
ment of  the  officer  who  exercises  it."     Ex  parte  Crump,  10  Okla.  Cr.  139. 

^  Martin  v.  State,  21  Tex.  App.  i ;  Greathouse's  Case,  Fed.  Cas.  No.  5741 ;  Opinion 
of  the  Justices,  120  Mass.  600;  Ex  parte  Hunt,  10  Ark.  284. 

5  Bishop,  New  Criminal  Law,  sees.  922  and  926. 


30     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

provisions  that  have  made  it  subject  to  regulation  and  control.  In 
some  state  constitutions  there  are  provisions  which  regulate  in  part  the 
operation  of  such  authority.  But  the  more  common  method  of  regula- 
tion is  through  statutory  legislation.  Most  pardon  authorities  are 
also  authorized  to  formulate  and  adopt  rules  and  regulations  which  are 
not  inconsistent  with  constitutional  and  statutory  provisions  on  this 
subject.  As  a  general  rule  all  pardon  authorities  are  subject  to  some 
degree  of  legislative  control.  The  only  states  at  the  present  time  in 
which  the  constitution  does  not  specifically  authorize  the  legislature  to 
prescribe  rules  governing  these  authorities  are  Connecticut,  Delaware, 
Kentucky,  Louisiana,  Maryland,  Massachusetts,  Mississippi,  New 
Hampshire,  New  Jersey,  Pennsylvania,  Rhode  Island,  Tennessee, 
and  Vermont.  But  in  times  past  some  of  the  other  states  made  no 
specific  provision  for  legislative  control.  This  was  true  of  Illinois 
under  its  constitution  of  1818,  of  Indiana  under  its  constitution  of  1816, 
of  Iowa  under  its  1846  constitution,  of  Kansas  under  the  constitution  of 
1857,  and  of  Maine  under  the  1819  constitution. 

The  members  of  state  constitutional  conventions  have  not  been 
agreed  as  to  the  extent  of  the  control  which  legislative  assemblies  should 
exercise  over  pardon  authorities.  But  the  degree  of  control  may  be 
classified  under  two  groups.  Pardon  authorities  in  a  number  of  states 
are  subject  (a)  to  rules  prescribed  by  law,'  while  in  a  larger  number  of 
states  such  pardon  authorities  are  subject  {b)  only  to  rules  prescribed 
by  law  which  govern  the  manner  of  applying  for  clemency.^ 

Bearing  in  mind  that  the  working  and  operation  of  pardon  authorities 
are  regulated  by  constitutional  provisions,  statutes,  and  by  rules  formu- 
lated by  pardon  authorities  themselves,  it  is  necessary  to  examine  in 
some  detail  the  limitations  and  conditions  under  which  the  clemency 
power  is  exercised. 

The  question  whether  this  authority  may  grant  clemency  before  or 
after  conviction  is  one  which  has  commanded  some  attention.  At  the 
close  of  the  eighteenth  century  it  was  uncommon  to  restrict  pardon 
authorities  in  this  respect.  The  first  constitutions  of  Massachusetts, 
New  Hampshire,  and  New  Jersey  provided  that  a  pardon  granted  before 
conviction  was  of  no  avail,  but  the  first  constitutions  of  the  other  original 

'  Alabama,  Arizona,  Arkansas,  Indiana,  Iowa,  Kansas,  Minnesota,  New  Mexico, 
Oklahoma,  Oregon,  South  Carolina,  Texas,  Virginia,  Washington,  West  Virginia. 

'  CaUfornia,  Colorado,  Florida,  Georgia,  Idaho,  Illinois,  Maine,  Michigan, 
Missouri,  Montana,  Nebraska,  Nevada,  New  York,  North  Carolina,  North  Dakota, 
Ohio,  South  Dakota,  Utah,  Wisconsin,  Wyoming. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  31 

states  contained  no  such  restrictions  on  the  pardoning  power.  Likewise 
the  Alabama  constitution  of  1819,  the  Indiana  constitution  of  1816,  the 
Kentucky  constitution  of  1792,  the  Louisiana  constitution  of  181 2,  the 
Missouri  constitution  of  1820,  and  the  Mississippi  constitution  of  1817 
were  all  silent  on  this  point.  But  a  change  in  view  was  already  showing 
itself,  for  in  the  Connecticut  constitution  of  1818,  the  Georgia  constitution 
of  1789,  the  Illinois  constitution  of  1818,  the  Maine  constitution  of  1819, 
the  New  York  constitution  of  1821,  the  Ohio  constitution  of  1802,  the 
South  Carolina  constitution  of  1790,  and  the  Tennessee  constitution  of 
1796  it  was  provided  that  the  power  of  clemency  could  not  be  exercised 
until  after  conviction. 

This  view  that  a  pardon  should  not  be  permitted  to  be  pleaded  as  a 
bar  to  prosecution  has  prevailed,  until  at  the  present  time  the  constitu- 
tions of  Delaware,  Kansas,  Kentucky,  Maryland,  Pennsylvania,  Vermont, 
and  Washington  are  the  only  ones  which  do  not  forbid  the  granting  of 
clemency  before  conviction.  Kansas  has  statutory  legislation  which 
prohibits  the  granting  of  pardons  before  conviction.^ 

In  so  far  as  can  be  determined  the  power  to  pardon  before  conviction 
does  not  seem  to  have  been  abused  by  those  governors  who  have  possessed 
the  power,  or  by  presidents  of  the  United  States  who  are  also  unrestricted 
in  this  respect.  In  the  discussions  in  the  Kentucky  constitutional 
convention  of  1890  there  was  a  positive  defense  of  the  exercise  of  this 
power  in  this  manner.  Some  favored  such  an  arrangement  so  that  the 
governor  could  pardon  for  technical  violations  of  law  before  trial.  It  was 
asserted  that  this  power  to  pardon  before  judgment  had  proved  especially 
beneficial  and  useful  immediately  after  the  Civil  War — also  that  it  had 
encouraged  good  citizens  to  help  suppress  lawlessness  and  feuds.  Mr. 
Bullitt  said  that  after  the  Civil  War  Kentucky,  instead  of  being  left  in 
the  condition  of  Missouri  and  several  other  states,  was  immediately 
restored  to  tranquillity  through  the  power  of  the  governor  to  pardon 
before  judgment,  and  that  Missouri  at  last  had  to  resort  to  it.^  Yet 
pardoning  before  conviction  is  liable  to  abuse,  and  the  occasions  when 
such  power  should  be  used  are  so  rare  that  it  would  seem  wise  not  to 
extend  its  exercise  to  the  pardoning  authorities. 

Another  question  which  also  affects  the  scope  or  jurisdiction  of  the 
clemency  power  is  one  which  concerns  the  offenses  which  may  be  dealt 
with  through  the  ordinary  procedure,  and  also  those  offenses  which  may 
be  pardoned  only   by   exceptional  methods.     The   regular  pardoning 

'  General  Statutes  of  Kansas  (1915),  sec.  6759. 

'  Debates  of  Kentucky  Constitutional  Convention  (1890),  p.  1257. 


32      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

power  in  the  American  states  is  usually  forbidden  to  extend  clemency 
in  cases  of  conviction  for  treason,  or  impeachment,  or  both.  Twenty- 
seven  states  do  not  permit  their  regular  pardoning  authorities  to  pardon 
in  either  of  these  instances.^ 

In  sixteen  states  the  ordinary  authorities  cannot  pardon  in  cases  of 
impeachment  but  apparently  may  pardon  for  conviction  of  treason.^ 
One  state  allows  this  authority  to  pardon  in  case  of  impeachment  but 
prohibits  the  exercise  of  clemency  for  conviction  of  treason;^  while  four 
states  have  no  constitutional  prohibition  against  the  granting  of  clemency 
for  conviction  of  treason  and  impeachment/ 

Of  the  twenty-seven  states  in  which  the  regular  pardon  authorities 
are  not  permitted  to  pardon  for  conviction  of  treason  or  impeachment, 
nineteen  provide  that  in  case  of  conviction  for  treason  the  governor  may 
suspend  the  execution  of  the  sentence  until  the  meeting  of  the  next 
legislature,  which  may  pardon  or  reprieve  or  order  the  execution  of  the 
sentence.^  Of  the  remaining  eight  states  in  this  group,  three  provide 
that  the  governor  with  the  advice  and  consent  of  the  senate  may  pardon 
for  treason;^  one,  Vermont,  grants  to  the  governor  the  power  to  pardon 
for  treason,  but  only  after  the  end  of  the  next  session  of  the  General 
Assembly;  while  the  constitutions  and  statutes  of  four  states  are  silent 
as  to  who  may  exercise  clemency  in  cases  of  conviction  for  treason.^ 

In  the  second  group  of  sixteen  states  where  the  ordinary  authorities 
cannot  pardon  in  cases  of  impeachment  the  constitutions  and  statutes 
of  these  states  are  silent  as  to  how  clemency  may  be  granted  for  this 
offense.  It  would  seem  that  there  is  no  redress  from  the  penalty  fixed 
unless  it  rests  with  the  legislature  itself.  In  Oregon  the  governor  may 
pardon  for  impeachment  but  cannot  pardon  for  treason.  But  in  the 
latter  case  he  may  suspend  the  execution  of  the  sentence  until  it  is 
reported  to  the  next  session  of  the  Legislative  Assembly,  which  may 

'  Alabama,  Arizona,  Arkansas,  California,  Colorado,  Florida,  Georgia,  Idaho, 
Indiana,  Iowa,  Kentucky,  Louisiana,  Michigan,  Mississippi,  Missouri,  Nebraska, 
Nevada,  New  Mexico,  New  York,  North  Carolina,  Ohio,  South  Dakota,  Texas,  Utah, 
Vermont,  Wisconsin,  Wyoming. 

^  Connecticut,  Delaware,  Maine,  ISIaryland,  IMassachusetts,  Minnesota,  New 
Hampshire,  New  Jersey,  North  Carolina,  Oklahoma,  Pennsjdvania,  Rhode  Island, 
South  Carolina,  Tennessee,  Virginia,  West  Virginia. 

3  Oregon.  '•  Illinois,  Kansas,  Montana,  Washington. 

5  Arizona,  California,  Florida,  Georgia,  Idaho,  Indiana,  Iowa,  Kentucky, 
Louisiana,  Michigan,  Nebraska,  Nevada,  New  York,  North  Dakota,  Ohio,  South 
Dakota,  Utah,  Wisconsin,  Wyoming. 

^  Arkansas,  Mississippi,  Texas.         ^  Alabama,  Colorado,  Missouri,  New  Mexico. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  33 

either  pardon,  commute  the  sentence,  or  order  the  execution  of  the 
sentence. 

In  all  states  there  are  prescribed  rules  which  govern  the  practice  and 
procedure  of  pardoning  authorities.  These  are  embodied  either  in  state 
constitutions,  or  statutes,  or  in  regulations  which  the  pardoning  bodies 
are  authorized  to  formulate.  Some  constitutions  such  as  those  of  Idaho, 
Mississippi,  Montana,  North  Dakota,  and  Utah  are  quite  full  in  defining 
the  composition,  powers,  and  regulations  governing  pardon  authorities, 
while  the  constitutions  of  Delaware,  Illinois,  Kansas,  Louisiana,  Maine, 
Maryland,  Minnesota,  New  Hampshire,  New  Mexico,  Oklahoma, 
Rhode  Island,  and  Tennessee  are  brief  in  this  respect.  Likewise  the 
statute  law  of  Idaho,  Illinois,  Kansas,  Mississippi,  Montana,  Nebraska, 
North  Dakota,  South  Dakota,  Wisconsin,  and  Wyoming  is  quite  detailed 
on  these  same  subjects,  while  that  of  Delaware,  New  Jersey,  New  Mexico, 
Tennessee,  Washington,  Virginia,  and  West  Virginia  is  meager.  Again 
there  is  considerable  variation  in  the  rules  and  regulations  which  pardon 
authorities  have  formulated.  Some  like  those  of  Pennsylvania  are 
extended,  others  like  those  of  Utah  and  Connecticut  are  very  limited. 

No  uniformity  seems  to  exist  in  these  respects.  Constitutions, 
statutes,  and  rules  are  all  made  use  of,  but  some  states  deem  it  necessary 
to  load  their  constitutions  with  matters  pertaining  to  clemency  which 
in  other  states  are  put  in  the  form  of  statutes,  or  even  merely  framed  as 
a  board  rule  or  regulation. 

ADinNISTRATION   OF   CLEMENCY 

For  the  purpose  of  receiving  and  considering  evidence  for  the  granting 
of  clemency  it  is  the  practice  of  the  authorities  in  nearly  all  the  states 
to  hold  formal  hearings  or  sessions  at  fixed  times  and  places.  In  most 
states  these  hearings  are  prescribed  either  by  constitutional  or  statute 
law.  But  great  variation  prevails  both  as  to  the  frequency  of  such 
hearings  and  as  to  the  place  where  the  sessions  are  held. 

TIME   OF   HEARINGS 

The  regular  meetings  of  pardon  boards  are  held  quarterly  in  Arizona, 
Idaho,  Illinois,'  Indiana,  Kansas,  Louisiana,  Minnesota,  Mississippi,* 
Nebraska,  South  Carolina,  and  Wyoming.  Pardon  boards  hold  monthly 
sessions  in  Colorado,  Georgia,  Michigan,  Montana,  North  Carolina,  Ohio, 

'  Monthly  meetings  are  held  to  consider  the  granting  of  paroles,  but  quarterly 
meetings  to  consider  matters  of  pardon  and  commutation. 

^  No  meeting  of  the  Mississippi  pardon  board  may  be  for  a  longer  period  than 
six  days. 


34      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Oregon,  Pennsylvania,  except  during  July  and  August,  and  Utah.  In 
Connecticut,  Nevada,  and  North  Dakota  the  boards  meet  semiannually. 
In  Iowa  the  meetings  are  bi-monthly.  In  New  York  the  board  must 
meet  at  least  ten  times  annually,  while  in  Rhode  Island  pardons  can 
only  be  granted  while  the  state  senate  is  in  session,  which  is  during  the 
first  four  months  in  each  year.  In  Alabama,  California,  South  Dakota, 
and  Vermont  the  pardon  authorities  do  not  have  regular  sessions  but 
meet  on  call.  Likewise  there  are  no  regular  set  sessions  in  Oklahoma 
and  West  Virginia,  since  the  problem  of  examining  applications  and 
recommending  action  is  in  the  hands  of  a  pardon  attorney  in  each  of 
these  states.  But  formerly  the  pardon  board  of  Oklahoma  met  monthly, 
and  the  members  of  the  pardon  board  in  Missouri  are  required  to  reside 
at  Jefferson  City  and  devote  their  time  wholly  to  the  work  of  the  said 
board.  In  such  states  as  Arkansas,  Kentucky,  Virginia,  and  Wis- 
consin where  the  pardoning  power  is  vested  solely  in  the  governor  the 
sessions  are  irregular  and  informal.  In  Wisconsin  Governor  Phillipp 
made  it  a  practice  to  ask  one  of  the  assistant  attorneys-general  to  sit 
with  him  when  considering  clemency  petitions. 

PLACE   OF   HEARINGS 

Much  variation  exists  as  to  the  meeting  place  of  the  pardoning 
authorities.  In  California  the  advisory  board  has  a  permanent  secretary 
and  maintains  offices  in  San  Francisco.  The  boards  in  Arizona, 
Massachusetts,  New  York,  North  Dakota,  Oregon,  and  Utah  hold  their 
regular  meetings  at  the  state  prisons.  In  Colorado  where  the  board 
meets  monthly,  except  in  July  and  August,  the  state  statutes  provide 
that  at  least  four  meetings  each  year  shall  be  held  in  the  state  prison  at 
Canon  City  and  the  other  sessions  in  the  governor's  office.  It  appears 
that  although  this  law  has  been  enacted  for  several  years  the  board  did 
not  begin  holding  any  sessions  at  the  state  prison  until  September,  1919. 

In  Connecticut  board  meetings  are  held  either  at  Hartford  or  at 
Wethersfield  where  the  state  prison  is  situated.  The  Iowa  board  meets 
at  the  reformatory  at  Anamosa,  the  penitentiary  at  Fort  Madison, 
and  at  the  capitol.  In  Indiana,  Kansas,  Mississippi,  Montana,  Pennsyl- 
vania, and  Texas  the  meeting  of  the  board  is  at  the  capitol;  while  in 
Louisiana,  North  Carolina,  and  South  Dakota  the  board  meets  in  the 
office  of  the  attorney-general,  which  presumably  is  in  the  state  capitol, 
but  which  is  in  New  Orleans  in  the  case  of  the  state  of  Louisiana.  The 
boards  in  Idaho  and  North  Dakota  meet  at  the  capitol  but  also  visit 
the  state  prison  during  each  session. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  35 

In  Michigan  the  board  holds  regular  meetings  at  the  Michigan  state 
prison,  the  Michigan  reformatory,  the  Detroit  house  of  correction,  the 
Marquette  prison,  and  at  the  executive  office.  The  Ohio  board,  which 
meets  daily,  holds  sessions  during  the  first  week  of  each  month  at  the 
penitentiary,  the  second  week  at  the  state  reformatory  at  Mansfield, 
and  the  third  week  at  the  woman's  reformatory  at  Marysville.  In 
Vermont  the  governor  may  fix  the  place  of  hearing,  and  in  Minnesota, 
the  board  may  direct  at  what  other  places  it  shall  meet  besides  the 
executive  chamber,  which  place  is  fixed  by  law. 

If  it  is  the  practice  of  the  board,  as  it  is  in  many  states,  to  interview 
prisoners  who  are  applicants  for  clemency  it  is  quite  clear  that  the  practice 
of  meeting  at  the  state  prison  or  other  place  of  confinement  is  to  be 
commended  from  the  standpoint  of  convenience.  But  in  addition  to 
this  advantage  there  is  the  further  one  that  a  board  can  in  many  instances 
reach  a  more  correct  determination  after  a  personal  interview  with  an 
applicant  than  if  the  personal  element  is  not  allowed  to  enter  in.  Those 
boards  which  hold  their  sessions  away  from  state  prisons  must,  therefore, 
either  arrive  at  their  conclusions  without  an  opportinuty  of  hearing  the 
petitioners,  or  must  arrange  to  have  such  petitioners  transported  to 
the  place  of  meeting. 

At  this  point  it  may  be  opportune  to  note  that  in  a  number  of  states 
some  applicants  for  clemency  are  first  paroled  before  being  pardoned, 
unless  proof  is  produced  to  show  entire  innocence  of  the  crime  charged. 
Granting  a  parole  is  quite  distinct  from  granting  a  pardon — the  granting 
of  the  latter  in  some  cases  being  conditioned  upon  the  good  behavior  of 
the  applicant  while  he  is  out  on  parole.  A  number  of  states  such  as 
Arkansas,  California,  Connecticut,  Indiana,  Kentucky,  Louisiana, 
Minnesota,  Missouri,  New  Jersey,  North  Carolina,  North  Dakota, 
Pennsylvania,  Rhode  Island,  Texas,  Virginia,  West  Virginia,  and 
Wisconsin  have  intrusted  the  granting  of  paroles  to  boards  which  are 
separate  and  distinct  from  their  pardon-  boards  and  authorities.  These 
parole  boards'  usually  meet  at  the  state  prison  in  order  to  pass  upon 
the  granting  of  paroles.  When  a  paroled  prisoner  at  a  later  time  applies 
for  a  pardon  or  discharge  he  is  at  large  in  some  other  part  of  the  state. 
In  considering  such  cases  no  useful  purpose  could  be  served  in  requiring 
the  pardon  board  to  meet  at  the  state  prison.     In  these  instances  the 

'  Parole  boards  are  known  by  \'arious  names  in  different  states.  Their  sole 
function  is  that  of  passing  on  applications  for  parole,  therefore  they  should  not  be 
confused  with  some  so-called  "parole  boards"  which  are  really  advisor}^  pardon 
boards  as  well  as  parole  boards. 


36      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

state  parole  officer  can  readily  meet  with  the  pardon  board  at  any 
convenient  place  within  the  state. 

Usually  a  petition  for  clemency  is  filed  by  the  prisoner  himself,  but 
most  states  permit  a  friend  or  interested  party  to  file  such  an  application 
in  behalf  of  the  prisoner.  This  is  especially  true  when  some  form  of 
clemency  other  than  parole  is  sought.  In  some  states  all  outside 
influence  or  aid  is  positively  prohibited  in  the  case  of  one  who  is  applying 
for  parole.     Thus  in  Idaho  the  statute  reads: 

In  considering  applications  for  parole  it  is  unlawful  for  the  Board  of 
Pardons  to  entertain  any  petition,  receive  any  written  communication,  or 
hear  any  argument  from  any  attorney  or  other  person  not  connected  with  the 
Penitentiary,  in  favor  of  a  conditional  pardon  of  any  prisoner,  but  the  Board 
may  institute  inquiries  by  correspondence  or  otherwise,  as  to  the  previous 
history  or  character  of  any  prisoner.' 

Like  provisions  in  respect  to  parole  exist  in  Arizona,  Iowa,  Michigan, 
New  Jersey,  Tennessee,  and  Texas.  In  California  no  oral  solicitation 
of  any  kind  will  be  heard,  but  written  petitions  will  be  received. 

Most  states  require  a  convict  who  petitions  for  clemency  to  submit 
his  petition  on  a  prescribed  application  blank  or  form.  Even  if  this  is 
not  insisted  upon  the  rules  governing  application  for- clemency  nearly 
always  require  that  the  applicant  furnish  considerable  data  so  that  the 
pardoning  authorities  will  have  preliminary  information  before  they 
engage  in  the  hearing.  An  examination  of  such  data  as  is  required  in 
some  of  the  western  states  will  give  an  idea  of  the  general  requirements 
in  this  respect  in  the  several  states. 

In  California  the  application  form  requires  an  answer  to  the  following 
inquiries:  Name;  prison  number;  age;  nationality;  county  where 
convicted;  crime;  date  of  sentence;  term  of  sentence ;  sentence  expires; 
name  of  judge;  name  of  prosecuting  attorney;  name  of  attorney  who 
defended  (whether  retained  by  defendant  or  appointed  by  the  court). 
If  case  appealed  to  Supreme  Court,  give  its  number  or  other  designation. 
Where  were  you  born  ?  Where  have  you  lived  ?  Were  you  ever  before 
convicted  of  any  crime  ?  If  so,  state  when,  where,  and  what  for.  What 
was  your  former  trade  or  occupation  ?  Have  you  ever  been  addicted 
to  the  use  of  liquor,  morphine,  or  opium?  Are  your  parents  living? 
If  so,  state  name,  age,  and  place  of  residence.  Are  you  married  ?  If 
so,  give  name,  and  place  of  residence  of  your  husband  or  wife.  Have 
you  any  children  or  other  relatives  dependent  upon  you  for  support? 
If  so,  state  name,  age,  and  place  of  residence.   Were  you  living  with  and 

'  Idaho  Revised  Codes,  1908,  sec.  8263. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  37 

supporting  your  family  at  the  time  of  your  conviction  ?  If  not,  state 
reasons.  Have  you  ever  made  previous  application  for  executive 
clemency  ?  Give  any  reasons  you  may  have  why  you  should  be  granted 
executive  clemency.  (Facts  to  sustain  these  grounds  may  be  shown  by 
affidavit  and  appended  hereto.) 

The  application  form  used  in  Wyoming  is  quite  similar  to  that  in 
California,  but  the  following  items  not  in  the  California  form  are  included 
in  the  Wyoming  form:  Maximum  term  for  crime  committed  prescribed 
by  law.  Minimum  term  for  crime  committed  prescribed  by  law. 
Pleaded  guilty  or  not  guilty.  Have  you  made  an  assault  with  a  deadly 
weapon  upon  any  officer,  fellow  convict,  or  employee  while  confined? 
Causes  of  crime.  Present  name  assumed  ?  If  so,  true  name.  Pre- 
viously lived  under  assumed  name?  Where  living  when  under  said 
assumed  name  ?  If  ever  living  under  assumed  name,  reason  for  same. 
Read;  write;  where  educated ;  years  at  school;  years  at  college ;  religion, 
religion  of  parents;  degree  of  attendance  upon  religious  services  while 
in  prison;  extent  of  moral  training  in  youth;  age  when  leaving  home; 
legitimate  occupation;  any  knowledge  of  other  trades;  if  so,  what  trades. 

The  following  questions  in  the  Oregon  form  are  not  found  in  either 
the  California  or  the  Wyoming  form :  Were  you  occupied  or  idle  preced- 
ing the  commission  of  your  crime  ?  Are  you  guilty  of  the  crime  ?  What 
did  you  plead  at  the  trial  ?  Are  you  justly  imprisoned  according  to  the 
evidence?  What  were  your  relations  to  the  complaining  witness? 
What  was  his  action  in  the  case,  fair  or  otherwise  ?  What  is  the  present 
attitude  of  complainant  toward  you  ? 

Nevada  asks:  Were  you  contributing  to  the  support  of  your  depend- 
ents, if  any,  at  the  time  of  your  arrest,  and  if  so,  to  whom  ?  Have  you 
contributed  to  the  support  of  your  dependents  since  your  incarceration  ? 
Do  you  communicate  with  your  relatives  and,  if  so,  with  whom  ? 

With  such  information  as  this  in  their  hands  the  pardoning  authori- 
ties possess  a  fair  knowledge  of  the  case  before  the  hearing  for  clemency 
occurs. . 

Since  a  hearing  is  not  only  for  the  purpose  of  considering  reasons 
for  granting  clemency,  but  also  to  hear  reasons  why  clemency  should 
be  refused,  it  is  the  rule  in  most  states  to  insist  upon  certain  requirements 
which  will  insure  publicity  of  hearings  so  that  all  interested  parties  may 
have  an  opportunity  to  appear.  Some  states  even  go  so  far  as  to  insert 
such  requirements  in  their  constitutions,  while  other  states  make  similar 
provisions  in  their  statutes.  In  most  states  provisions  exist  which 
require  that  notice  of  intention  to  apply  for  pardon  must  be  given  in  a 


38      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

newspaper  printed  in  the  county  in  which  the  crime  was  committed,  or, 
if  no  newspaper  is  published  in  such  county,  then  the  information  is  to 
be  given  in  a  newspaper  published  in  an  adjoining  county.  Also  it  is 
common  to  require  that  notice  of  intention  to  make  application  shall  be 
posted  on  the  door  of  the  county  courthouse  of  the  county  in  which 
the  applicant  was  convicted  of  the  crime.  A  summary  of  these  require- 
ments as  they  exist  in  those  states  where  this  information  is  available 
is  here  appended. 

NOTICE   OF   HEARING 

Alabama. — Notice  of  hearing  to  be  published  for  two  weeks  preceding  a 
hearing  in  a  newspaper  published  in  county  where  applicant  was  convicted. 
If  no  newspaper  is  there  published  then  notice  is  to  be  posted  on  courthouse 
door  and  in  three  other  public  places  in  the  county.  A  copy  of  the  notice 
and  proof  of  its  publication  is  to  accompany  the  application.  Code,  1907, 
sec.  7511. 

Arizona. — Ten  days  before  action  by  Board,  applicant  must  give  notice 
to  county  attorney  of  county  where  convicted.  Proof  of  service,  by  affidavit, 
must  be  presented  to  the  Board.  Publication  of  intention  to  apply,  for  thirty 
days  in  newspaper  published  in  county  of  conviction,  must  be  made  unless 
dispensed  with  by  governor.  These  provisions  not  applicable,  (i)  in  case  of 
imminent  danger  of  death  of  applicant,  (2)  when  term  is  within  ten  days  of 
expiration.     Penal  Code,  1913,  sees.  1304-1306. 

Arkansas. — For  the  more  serious  offenses,  publication  twice  per  week  in 
newspaper  in  county  of  conviction.  If  offense  was  committed  in  a  different 
county  then  pubUcation  to  be  made  in  both  counties.  Proof  of  publication 
required.     Digest  Arkansas  Statutes,  1916,  sees.  2746-47. 

For  minor  offenses  application  with  signers  to  be  posted  at  entrance  to 
courthouse  of  county  or  counties  (if  crime  is  committed  in  one  county,  and 
trial  occurs  in  another  county)  for  ten  days  prior  to  application  being  presented 
to  governor.     Sec.  2748. 

Governor  may  waive  publication  if  applicant  is  unable  to  pay  expense  of 
the  same.     Sec.  2749. 

Governor  may  waive  publication  in  any  case,  but  in  such  cases  application 
for  pardon  cannot  be  made  by  any  attorney  or  paid  representative  of  person 
applying  for  pardon.     Sec.  2749. 

Presentation  of  application  without  compliance  with  law  requiring  publica- 
tion subjects  offender  to  penalty  of  not  less  than  $100  nor  more  than  $500. 
Sec.  2750. 

California. — Ten  days  before  governor  takes  action,  notice  of  application 
to  be  served  on  district  attorney  of  county  of  conviction.  Proof  of  service 
to  be  furnished  by  affidavit.     Penal  Code,  1915,  Sec.  1421. 

Unless  dispensed  with  by  governor,  notice  of  intention  to  apply  for  clem- 
ency must  be  published  for  thirty  days  prior  in  newspaper  of  county  of  con- 
viction.    Sec.  1422. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  39 

The  above  two  sections  do  not  apply  when  appHcant  is  in  imminent 
danger  of  death,  or  within  ten  days  of  expiration  of  sentence.     Sec.  1423. 

Colorado. — Applicant  must  present  to  governor  a  certificate  from  warden 
of  state  prison  showing  nature  of  conduct  of  appHcant  while  confined.  Colo- 
rado Statutes,  1 914,  sec.  2044. 

Connecticut. — Notice  of  petition  for  clemency  to  be  published  in  news- 
paper in  county  of  conviction  at  least  two  weeks  successively  before  the  regu- 
lar session  of  Board.  Copy  of  the  newspaper  to  be  filed  with  clerk  of  Board. 
Rules  of  Pardon  Board.     Rule  2. 

Delaware. — Silent. 

Florida. — Notice  of  intention  to  apply  to  be  posted  for  ten  days  on  court- 
house door  and  in  two  or  more  other  places  in  county  of  commission  of  crime, 
or  to  be  published  for  such  period  in  newspaper  of  said  county.  One  copy  of 
notice  to  be  posted  in  neighborhood  where  crime  was  committed.  Proof  to 
be  furnished  by  afiidavit  that  notice  has  been  posted  or  published.  General 
Statutes,  1906,  sec.  4074. 

Georgia. — Notice  of  intention  to  apply  to  be  posted  on  courthouse  door 
of  the  county  of  commission  of  crime,  thirty  days  before  hearing.  Afiidavit 
to  be  furnished  certifying  to  compliance  with  this  rule.  Joint  Rules  of  the 
Governor  and  Prison  Commission.     Rule  3. 

Idaho. — Notices  of  time  and  place  of  hearing  to  be  published  in  newspaper 
of  general  circulation  at  least  once  a  week  for  four  weeks  by  applicant.  Consti- 
tution, Art.  4,  sec.  7. 

Illinois. — Notice  of  application  to  be  published  for  three  weeks  in  news- 
paper in  county  of  conviction.  Certified  copy  of  notice  to  accompany  petition. 
Governor  and  Division  of  Pardons  and  Paroles  may  waive  this  requirement. 
Revised  Statutes,  191 5-16,  chap.  104a,  sec.  2. 

Indiana. — Calendar  of  cases  to  be  heard  is  furnished  to  local  newspapers 
and  to  press  associations  prior  to  each  meeting. 

Iowa. — Before  presenting  application  to  Board,  the  governor  shall  cause 
notice  of  reasons  assigned  why  pardon  should  be  granted  to  be  published  in  two 
newspapers  of  general  circulation — one  at  the  capital,  the  other  in  county  of 
conviction,  once  each  week  for  four  successive  weeks;  the  last  pubUcation  to 
be  at  least  twenty  days  prior  to  session  of  Board.  Supplement  Code  of  Iowa> 
1913,  sec.  5626. 

Kansas. — Notice  of  application  to  be  published  for  two  weeks  in  news- 
paper in  county  of  conviction.  If  no  newspaper  is  published  in  such  county 
then  notice  of  application  to  be  posted  on  courthouse  door.  General  Statutes 
1915,  sec.  6754. 

Kentucky. — Silent. 

Louisiana. — Notice  of  application  to  be  given  by  three  publications, 
covering  ten  days,  in  newspaper  published  in  parish  where  offense  was  com- 
mitted.    Rules  of  Pardon  Board.     Rule  No.  2. 

Maine. — Notice  of  application  to  be  given  county  attorney  in  county  of 
conviction  at  least  three  weeks  before  hearing;  and  three  weeks'  notice  to  be 


40      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

given  in  newspaper  published  in  county  of  conviction.     Revised  Statutes, 

1916,  chap.  140,  sec.  i. 

Maryland. — Before  the  governor  grants  a  nolle  prosequi  or  pardon  he  shall 
give  notice  in  one  or  more  newspapers,  of  the  application  made,  and  of  the 
day  on  or  after  which  his  decision  will  be  given.  Constitution,  1867,  Art.  2, 
sec.  20. 

Massachusetts. — The  attorney-general,  district  attorney,  or  justice  of 
police  court,  depending  upon  the  nature  of  the  offense,  shall  be  notified  of  hear- 
ing upon  application  for  pardon  and  may  be  present  and  examine  petitioner's 
witnesses,  and  also  be  heard  respecting  the  application.  General  Acts,  191 7, 
chap.  266. 

Michigan. — Dates  of  meetings  are  always  advertised  by  the  Board.  Any 
interested  party  may  secure  whatever  information  he  wishes  upon  making 
application  to  the  secretary  of  the  Board. 

Minnesota. — Clerk  of  Board  to  give  notice  of  time  and  place  of  hearing  to 
trial  judge  and  prosecuting  attorney.     General  Statutes,  1913,  sec.  9286. 

Mississippi. — Applicant  to  publish  for  thirty  days  before  hearing  his 
petition  in  a  newspaper  published  in  county  of  commission  of  crime.  If  no 
newspaper  is  published  in  such  county  then  publication  is  to  be  in  an  adjoin- 
ing county.     Constitution,  1890,  Art.  5,  sec.  124. 

After  name  is  placed  on  meritorious  list,  then  at  following  meeting  the 
Board  will  consider  application.  But  before  such  meeting  applicant  must 
again  publish  application  in  some  newspaper  in  county  of  commission.  If  no 
newspaper  is  published  in  such  county  then  applicant  must  post  application  in 
three  conspicuous  places  in  the  county,  one  of  which  is  front  door  of  courthouse. 
A  sworn  affidavit  that  this  has  been  done  must  be  published.  Secretary  of 
Board  shall  also  publish  a  list  of  all  applications  for  final  consideration  in  a 
newspaper  for  three  consecutive  weeks  published  at  the  capital.  Constitution, 
1890,  Art.  5,  sec.  124. 

Missouri. — Intention  to  apply  for  clemency  to  be  published  by  applicant 
in  weekly  newspaper  in  county  of  conviction  for  two  weeks.  Affida\'it  of 
publication  to  be  furnished.  Board  may  waive  requirement  of  publication  if 
expense  would  be  a  hardship,  or  for  other  proper  reasons.     Laws  of  Missouri, 

1917,  sec.  137. 

Montana. — Notice  of  time  and  place  of  hearing,  and  of  relief  sought,  to  be 
published  in  newspaper  in  county  of  commission  of  crime,  at  least  once  a  week 
for  two  weeks  by  Board.     Constitution,  1889,  Art.  7,  sec.  9. 

Proof  of  publication  to  be  made.     Revised  Code,  1907,  Sec.  9561. 

Publication  not  required  if  imminent  danger  of  death  of  applicant,  or  if 
term  expires  in  ten  days.     Sec.  9570. 

Notice  of  time  and  place  of  hearing  to  be  mailed  to  trial  judge,  county 
attorney,  and  sheriff  of  county.     Sec.  9560. 

Nebraska. — Notice  of  time  and  place  of  hearing  to  be  given  to  trial  judge 
and  prosecuting  attorney  at  least  fifteen  days  before  the  hearing.  Laws  of 
Nebraska,  1913,  sec.  10569. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  41 

New  Hampshire. — Written  notice  of  hearing  to  be  given  state's  counsel,  and 
to  such  others  as  the  governor  may  direct.     Pubhc  Statutes,  chap.  20,  sec.  3. 

New  Mexico. — Silent. 

North  Carolina. — Notice  of  apphcation  to  be  published  at  least  two  weeks 
in  conspicuous  place  in  newspaper  published  in  county  of  commission  of 
crime.  If  no  paper  is  published,  notice  is  to  be  posted  on  courthouse  door  and 
post-office  at  county  seat,  and  at  post-office  nearest  where  crime  was  com- 
mitted. Affidavit  of  publication  or  posting  to  be  furnished.  If  there  was  a 
private  prosecutor  in  the  case,  he  or  his  attorney  must  be  specially  notified. 
Rules  Governing  Application  for  Pardon.     Rules  3  and  4. 

North  Dakota. — Clerk  of  Board  shall  notify  trial  judge  and  prosecuting 
attorney  of  time  and  place  of  hearing.     Compiled  Laws,  1913,  sec.  11 105. 

Ohio. — Notice  of  application  for  pardon  must  be  given  by  applicant  to 
prosecuting  attorney  three  weeks  before  hearing.  Proof  of  such  notice  must 
be  submitted.  Notice  of  application  with  data  to  be  published  in  newspaper 
in  county  of  commission  three  weeks  before  consideration  of  petition.  Gov- 
ernor may  modify  this  requirement  in  case  of  capital  punishment  or  of  im- 
minent danger  of  death. 

Oklahoma. — Notice  of  hearing  to  be  pubhshed  in  newspaper  of  general 
circulation  in  county  of  commission  of  crime  for  thirty  days  before  the  hearing. 

Oregon. — At  least  twenty  days  before  application  is  made  written  notice 
of  intention  to  apply,  and  stating  grounds  therefore,  must  be  served  by  convict 
upon  district  attorney  of  the  county  of  conviction.  Proof  of  this  must  be 
furnished  by  affidavit.     Lord's  Oregon  Laws,  19 10,  sec.  1721. 

Pennsylvania. — Notice  of  intention  to  apply  for  clemency  to  be  given  to 
trial  judge,  prosecuting  attorney,  warden  of  prison,  mayor,  and  head  of  police 
department  in  city  of  conviction  at  least  ten  days  before  meeting  of  Board. 
Affidavit  that  such  notice  has  been  given  is  to  be  furnished. 

Notice  of  intended  application  to  be  advertised  once  a  week  for  two  consecu- 
tive weeks  in  newspaper  published  in  county  or  city  of  conviction.  Pardon 
Board  Rules.     Rule  4. 

Rhode  Island. — Before  parole  board  acts  the  attorney-general  must  be 
given  an  opportunity  to  be  present.     Session  Laws,  191 5,  chap.  1186,  sec.  8. 

South  Carolina. — Petitions  for  clemency  are  referred  to  state's  attorney 
who  prosecuted,  and  to  judge  who  presided  at  trial. 

South  Dakota. — Notice  of  application  to  be  given  prosecuting  attorney 
thirty  days  before  application  is  filed  with  governor.  Such  notice  to  be  certi- 
fied to.  Notice  of  application  to  be  published  once  a  week  for  four  successive 
weeks  in  newspaper  in  county  of  commission  of  crime.  If  no  newspaper  is 
published  then  notice  to  be  posted  in  conspicuous  place  on  door  of  county 
courthouse  for  four  successive  weeks  prior  to  hearing.  Affidavit  to  this 
effect  to  accompany  application.  Any  person  opposing  the  granting  of 
clemency  may  appear  at  hearing.  The  above  requirements  do  not  apply 
to  pardons  granted  thirty  days  before  prisoner  is  entitled  to  discharge.  Com- 
piled Laws  South  Dakota,  1913,  Vol.  I,  Political  Code,  Art.  5,  sec.  229. 


42      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Tennessee. — Silent. 

Texas. — Silent. 

Utah. — Secretary  of  Board  shall  cause  notice  of  applications  to  be  pub- 
lished once  a  week  for  two  consecutive  weeks  in  newspaper  published  or 
circulated  in  Salt  Lake  City.  Secretary  shall  mail  notice  of  hearing  to  pros- 
ecuting attorney,  and,  except  in  case  of  indeterminate  sentence,  to  trial  judge 
for  information,  and  also  to  warden  of  state  prison.  Board  of  Pardons. 
Rules  6  and  7. 

Vermont. — Governor  to  give  notice  of  hearing  to  applicant  and  to  prose- 
cuting attorney.  Governor  may  publish  the  decision  reached.  Public  Statutes, 
1906,  sees.  6125,  6127. 

Virginia. — Opportunity  is  always  given  when  a  person  desires  to  be  present 
and  heard. 

Washington. — Silent. 

West  Virginia. — Applicant  must  give  notice  of  intention  to  apply,  once 
each  week  for  two  successive  weeks  in  newspaper  of  general  circulation  pub- 
lished in  the  county  where  applicant  was  indicted.  Proof  of  publication  to 
be  furnished.     Rules  Governing  Pardon  Attorney. 

Wisconsin. — Notice  of  application  for  pardon  shall  be  given  trial  judge  and 
prosecuting  attorney  three  weeks  before  application  is  filed.  Acknowledge- 
ment of  such  receipt  by  judge  and  prosecuting  attorney  is  to  be  filed  with 
application.  Notice  of  application  for  pardon  to  be  published  at  least  once 
a  week  for  two  successive  weeks  in  newspaper  in  county  of  commission  of 
crime.  If  no  newspaper  is  published  there,  then  notice  to  be  posted  on  county 
courthouse  door  for  three  weeks  prior  to  application,  and  to  be  published 
once  each  week  in  newspaper  published  in  adjoining  county.  Affidavit  to 
this  effect  to  accompany  application.  Wisconsin  Statutes,  1915,  sec.  4856. 
(Laws  of  191 9  provide  this  section  be  renumbered  as  sec.  57.09.) 

Wyoming. — Notice  of  application  for  pardon  to  be  given  prosecution 
attorney  at  least  three  weeks  before  application  is  considered.  Such  acknowl- 
edgement to  accompany  application.  Notice  of  application  to  be  published  in 
newspaper  in  county  of  commission  of  crime.  If  no  newspaper  is  printed 
there,  then  notice  to  be  posted  on  door  of  county  courthouse  three  weeks  before 
consideration  of  application.  Affidavit  to  this  effect  to  accompany  applica- 
tion. When  capital  punishment  is  to  be  inflicted  such  notice  shall  only  be 
required  to  be  served  and  published  for  ten  days  before  consideration  of  applica- 
tion. Foregoing  provisions  not  applicable  in  cases  of  imminent  danger  of 
death  of  applicant,  nor  if  warden  and  officials  of  penitentiary  unite  in  recom- 
mending pardon  of  the  applicant.     Compiled  Statutes,  1910,  sec.  559. 

These  provisions  insure  that  notice  of  hearing  shall  be  given  to  the 
public  so  that  it  may  submit  reasons,  both  favorable  and  unfavorable, 
in  regard  to  granting  the  clemency  petitions  that  are  to  be  considered. 
In  many  states  it  is  felt  also  that  a  statement  of  facts  should  be  secured 


ADMINISTRATION  OF  PARDON  AUTHORITIES  43 

from  the  trial  judge  and  the  prosecuting  attorney  in  each  case  under 
consideration.  Over  half  of  the  states  have  provisions  which  either 
require  these  officials  to  submit  a  statement  of  the  circumstances  con- 
nected with  each  case  wherein  a  defendant  is  found  guilty  on  a  criminal 
charge,  or  else  such  provisions  allow  pardoning  authorities  to  call  upon 
trial  judges  and  prosecuting  attorneys  to  furnish  the  desired  information 
in  each  clemency  case  that  is  under  advisement.  As  a  result  of  these 
various  provisions  and  requirements  the  pardon  authorities  in  the 
American  states  are  provided  with  facilities  for  obtaining  needed  informa- 
tion, and  the  public  is  furnished  the  opportunity  to  contribute  any 
information  which  is  germane  or  vital  to  any  case  of  clemency  to  be 
taken  under  consideration. 


CHAPTER  IV 

ADMINISTRATION  AND  OPERATION  OF  PARDON 

AUTHORITIES— Cow/mwei 

Having  concluded  a  study  of  the  requirements  preliminary  to  the 
holding  of  a  clemency  hearing  attention  may  next  be  directed  to  the 
manner  in  which  hearings  are  conducted  in  the  various  states. 

OPEN   OR   CLOSED  HEARINGS 

Whether  a  hearing  shall  be  an  open  one  or  a  closed  one  is  a  matter 
on  which  practice  is  not  uniform.  Open  hearings  are  held  in  Alabama, 
Connecticut,  Georgia,  Idaho,  Illinois,  Indiana,  Maine,  Maryland, 
Michigan,  Missouri,  Montana,  Nebraska,  New  Hampshire,  New  Mexico, 
North  Carolina,  Pennsylvania,  South  Dakota,  Utah,  Vermont,  Virginia, 
and  Wisconsin.  On  the  other  hand  closed  hearings  are  held  in  Arkansas, 
California,  North  Dakota,  Oregon,  and  Wyoming. 

In  Colorado  the  hearings  are  regarded  as  open  but  only  interested 
parties  may  appear,  the  press  and  the  curious  public  being  excluded. 
The  rules  of  the  Iowa  Board  of  Parole,  which  is  also  an  advisory  pardon 
board,  provide  for  an  open  hearing  but  the  chairman  of  the  Board 
reports  that  they  are  closed.  Massachusetts  holds  closed  hearings 
except  when  the  Board  considers  that  the  petitioner  or  the  public  may 
be  benefited  by  an  open  session.  In  Ohio  informal  hearings  are  held. 
An  open  hearing  is  granted  in  Oklahoma  if  demanded  by  the  parties 
resisting  the  granting  of  clemency.  In  Rhode  Island  the  Parole  Board, 
which  deals  only  with  applications  for  parole,  is  not  required  to  hold 
either  a  public  or  a  private  hearing.  Likewise  the  Tennessee  Parole 
Board  does  not  hold  hearings  since  it  is  forbidden  to  receive  communica- 
tions or  to  hear  arguments  for  or  against  the  recommending  of  clemency. 
This  latter  statement  also  applies  to  the  Texas  Board  of  Prison 
Commissioners,  which  is  a  parole  board.  In  West  Virginia  the  pardon 
attorney  is  forbidden  by  the  rules  governing  application  for  clemency 
to  hear  oral  arguments. 

In  those  states  which  hold  open  hearings  it  is  customary  for  the  board 
or  other  authority,  after  all  evidence  has  been  presented,  to  go  into 
executive  session  for  the  purpose  of  considering  the  evidence  and  reaching 
a  conclusion.     But  although  this  is  the  usual  method  there  are  occasional 

44 


ADMINISTRATION  OF  PARDON  AUTHORITIES  45 

instances  in  Utah  and  other  states  in  which  decisions  are  reached  and 
announced  in  open  session. 

TESTIMONY   SUBMITTED   UNDER   OATH 

An  interesting  study  is  that  of  noting  to  what  extent  the  hearings 
of  pardon  authorities  approach  the  methods  and  procedure  which 
prevail  in  criminal  trial  courts.  On  this  point  it  may  first  be  pointed 
out  that  in  most  hearings  the  evidence  presented  is  not  submitted  under 
oath.  An  exception  to  this  prevails  in  Alabama,  Connecticut,  Iowa, 
Massachusetts,  New  Hampshire,  Pennsylvania,  and  Wisconsin.  In 
these  states  witnesses  are  sworn.  In  Idaho  a  false  statement  in  the 
application  for  clemency  constitutes  perjury. 

Practically  all  pardon  authorities  have  the  power  to  administer 
oaths  but  most  of  them  consider  it  unnecessary  or  inadvisable  to  do  so. 
In  Louisiana  when  an  application  for  c'emency  is  based  on  material 
facts,  sworn  proof  of  such  facts  must  accompany  the  application.  In 
Maryland  evidence  is  submitted  under  oath  as  a  rule,  but  this  is  not 
required  in  the  case  of  the  trial  judge  or  state's  attorney  when  they  are 
present  and  offer  testimony.  In  Vermont  evidence  is  not  given  under 
oath  but  it  is  verified  before  it  is  accredited.  From  this  summary  it 
would  appear  that  the  practice  of  requiring  that  evidence  be  submitted 
under  oath  is  confined  principally  to  the  New  England  group  of  states. 

FORMALITY  OF  PROCEDURE 

The  manner  in  which  hearings  are  conducted  depends  upon  the  rules 
of  the  Board  or  other  authority,  and  the  degree  to  which  such  rules  are 
applied.  In  general  it  may  be  said  that  no  hearing  is  conducted  in  as 
technical  a  manner  as  is  a  criminal  trial  in  a  court  of  the  land.  Little 
or  no  attention  is  given  to  the  matter  of  the  law  of  evidence.  Testimony 
is  usually  presented  in  a  purely  informal  manner.  But  in  some  states  it 
would  appear  that  hearings  are  a  little  more  technical  in  character  than 
in  some  others.  In  Massachusetts  it  is  said  that  the  procedure  in  hear- 
ings is  similar  to  that  in  judicial  courts  but  that  it  is  more  liberal.  In 
Pennsylvania  the  rules  of  judicial  courts  are  followed  but  in  modified 
form.  In  Connecticut  an  approach  is  made  toward  judicial  procedure. 
On  the  other  hand  in  a  number  of  states  such  as  Ohio,  Oklahoma,  and 
Iowa  the  hearings  are  very  informal  and  not  like  those  of  courts  of 
record. 

In  California  a  hearing  is  not  regarded  as  a  trial  but  merely  as  an 
opportunity    to    consider    evidence    already    submitted.     Likewise    in 


46      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Colorado  a  hearing  is  not  looked  upon  as  a  trial  and  few  rules  govern  the 
procedure.  The  Colorado  Board  usually  does  not  have  a  transcript  of 
evidence  before  it,  because  no  transcript  is  prepared  except  in  those 
cases  carried  to  the  state  Supreme  Court.  In  general  the  proceedings 
before  pardon  authorities  are  very  informal  and  unhampered  by  tech- 
nical rules  as  to  the  submission  of  evidence 

This  is  further  indicated  by  the  fact  that  in  few  states  are  full 
stenographic  reports  made  of  the  proceedings  In  so  far  as  can  be 
determined  such  stenographic  reports  are  obtained  only  in  Alabama; 
in  Georgia;  in  Illinois  as  the  work  is  now  being  done,  but  not  prior  to 
July  I,  191 7;  in  Massachusetts  where  such  a  copy  of  each  hearing  goes 
with  the  Board's  recommendations  to  the  governor;  in  Nebraska;  in 
special  cases  in  Maryland;  and  of  important  evidence  in  Vermont. 
But  in  all  states  a  clerk  or  secretary  makes  a  record  of  conclusions 
reached,  and  some  state  statutes  require  that  important  evidence  be 
reduced  to  writing 

SCOPE   or   INQUIRY 

Does  the  pardoning  authority  confine  its  examination  to  facts  and 
conditions  that  were  unknown  at  the  time  of  trial  and  sentence,  and  that 
have  arisen  since,  or  does  such  authority  permit  each  case  to  be  exam- 
ined from  all  aspects  so  as  to  review  the  entire  past  history  of  the  crime 
and  of  the  applicant  ?  In  the  great  majority  of  states  there  is  no  limita- 
tion as  to  the  scope  of  the  inquiry.  Anything  that  is  considered  of 
value  is  regarded  as  germane.  Therefore  the  complete  career  of  the 
criminal,  and  the  disposition  of  the  case,  are  open  to  investigation. 
But  the  policy  in  some  few  states  is  that  of  restricting  the  nature  of  the 
inquiry 

For  instance,  what  should  be  the  relation  of  the  pardon  authority 
to  the  courts  which  have  found  the  applicant  guilty  and  pronounced 
sentence  ?  Should  the  pardon  authority  act  as  a  court  of  review  of  the 
trial  courts  and  the  appellate  courts  of  a  state  ?  Should  the  pardon 
authority  presume  to  grant  clemency  because  of  any  incorrectness,  or 
irregularity,  or  illegality  of  proceedings  in  the  trial  courts?  In  several 
states  such  as  Colorado,  Georgia,  Idaho,  New  Mexico,  North  Dakota, 
Oklahoma,  Oregon,  Pennsylvania,  Utah,  Vermont,  Virginia,  and  Wyo- 
ming clemency  is  granted  for  these  reasons  if  it  is  considered  that 
justice  demands  it. 

It  is  said  in  Connecticut  that: 

It  has  been  the  reasoning  of  the  Board  that  if  a  man  was  defended  by 
counsel  and  had  full  opportunity  to  present  all  the  testimony  that  he  could 


ADMINISTRATION  OF  PARDON  AUTHORITIES  47 

find  to  assist  him  in  open  court  and  the  evidence  was  heard  by  twelve  men, 
whom  we  must  assume  to  be  fair-minded  men,  on  the  jury,  their  conclusions 
ought  not  to  be  disturbed  unless  some  special  meritorious  reason  has  developed 
since  the  trial  to  warrant  clemency. 

The  Pardon  Board  in  Indiana  does  not  believe  it  is  its  function 
to  weigh  evidence,  or  release  men  because  of  errors  and  irregularities 
occurring  in  the  trial  court.  Yet  an  occasional  case  arises  where  these 
matters  are  gone  into  and  considered,  and  their  existence  is  the  determin- 
ing factor  in  causing  the  Board  to  recommend  clemency.  Likewise  in 
Maine  clemency  is  not  granted  for  these  reasons  unless  the  evidence 
raises  a  doubt  as  to  the  guilt  of  the  accused,  or  the  sentence  seems 
excessive  and  the  merits  of  the  case  under  all  circumstances  warrant 
clemency.  In  Maryland  the  case  is  not  tried  anew.  The  verdict  is 
considered  to  be  justified  unless  new  evidence  has  been  discovered. 
Governor  Harrington  granted  no  pardons  because  of  error  or  irregu- 
larity in  the  trial  court.  Clemency  is  granted  very  seldom  for  these 
reasons  in  North  Carolina  and  Wisconsin.  In  South  Dakota  it  has  not 
been  done  in  the  last  ten  years.  Ohio,  Michigan,  and  Nevada  make 
no  effort  to  review  or  impugn  court  decisions.  In  California'  and  West 
Virginia^  when  an  application  for  clemency  is  based  on  a  mistrial  or 
improper  conviction,  the  allegation  must  be  sustained  by  such  reasons 
and  evidence  as  would  probably  be  ground  for  a  new  trial,  and  in  Cali- 
fornia cause  must  be  shown  why  a  new  trial  was  not  applied  for  and 
obtained. 

But  a  few  states  have  gone  farther  and  by  statutory  enactment 
have  prohibited  absolutely  their  pardon  authorities  from  reviewing  or 
passing  upon  the  correctness,  regularity,  or  legality  of  the  proceedings 
in  the  trial  court.     In  Massachusetts 

The  said  board  (Advisory  Pardon  Board)  shall  not  review  the  proceedings 
of  the  trial  court,  and  shall  not  consider  any  questions  regarding  the  correct- 
ness, regularity,  or  legality  of  such  proceedings,  but  shall  confine  itself  solely 
to  matters  which  properly  bear  upon  the  propriety  of  the  extension  of  clemency 
to  the  applicant. 3" 

'  Rules  Governing  Applications  for  Executive  Clemency.     Rule  No.  4  (California) . 

^  Rules  and  Regulations  Governing  the  Pardon  Attorney.  Rule  No.  1 1  (West 
Virginia) . 

3  General  Acts  of  Massachusetts,  19 17,  chap.  266,  sec.  5.\. 

"  "Likewise  the  Board  is  forbidden  to  review  the  proceedings  of  the  trial  court. 
While  in  almost  every  case  the  Board,  if  it  had  the  discretion,  would  doubtless  refuse 
to  review  the  proceedings  of  the  trial  court,  it  is  difficult  to  see  how  an  applicant  for 


48      TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Similar  statutes  exist  in  Nebraska^  and  Illinois^  which  prohibit  the 
pardon  authorities  from  reviewing  the  action  of  trial  courts. 

In  a  few  states  an  attempt  has  been  made  to  determine  the  kind  of 
evidence  that  shall  be  submitted,  and  even  in  some  instances  to  lay  down 
rules  for  the  weighing  and  evaluating  of  evidence.  In  Nebraska  and 
New  Mexico  the  investigation  is  usually  limited  to  the  latest  evidence — 
to  facts  that  have  been  learned  since  conviction.  In  Wisconsin  the 
governor  may  consider  all  phases  of  a  case  but  Governor  Phillipp  refused 
to  grant  a  pardon  on  the  ground  of  innocence  unless  new  and  convin- 
cing evidence  that  could  not  be  produced  at  the  trial  was  presented. 

In  California  if  applications  are  based  upon  newly  discovered 
evidence,  the  evidence  must  be  such  as  would  probably  have  produced 
an  acquittal  on  a  second  trial.  Should  the  trial  judge,  prosecuting 
attorney,  or  any  of  the  jurors  recommend  clemency  a  statement  should 
be  secured  from  each  "giving  the  newly  discovered  facts,  or  altered  or 
extenuating  circumstances  which  have  produced  the  change  in  his  opinion 
since  the  trial.  The  governor  will  not  consider  the  signatures  of  these 
ofl&cers  entitled  to  any  more  consideration  than  those  of  other  persons, 
unless  such  reasons  are  given  "^ 

Similarly  in  Georgia  "requests  of  trial  jurors  for  modification  of 
their  verdicts  should  be  made  under  oath,  and  cannot  be  esteemed  as 
having  much  weight  unless  they  swear  that  facts  brought  to  their 
attention  subsequent  to  the  trial  are  convincing  to  them  that  their 
verdict  was  in  error."'' 

The  rules  in  Illinois  provide  that 

Newly  discovered  evidence,  or  facts  and  circumstances  occurring  sub- 
sequent to  the  conviction  will  be  considered  by  the  Division  of  Pardons  and 
Paroles.  To  entitle  newly  discovered  evidence  to  be  received  the  same  shaU 
be  accompanied  by  a  statement  from  the  state's  attorney  that  the  same  was 
not  heard  on  the  trial  of  the  cause,  which  evidence  and  statement  shall  be 
filed  with  the  clerk  of  the  Division  of  Pardons  and  Paroles,  and  such  alleged 


pardon  could  establish  his  innocence  without  some  review  of  the  proceedings  of  the 
trial  court;  and  the  establishment  of  innocence  in  the  opinion  of  the  Board  entitles 
a  man  to  a  pardon  as  a  matter  of  right." — Report  of  Massachusetts  Board  of  Parole 
(i9i9),p.  21. 

'  Revised  Statutes  of  Nebraska,  1913,  sec.  9170. 

^  Revised  Statutes  of  Illinois,  1915-16,  chap.  104a,  sec.  10. 

3  Rules  Governing  Applications  for  Executive  Clemency  in  California.  Rules 
4  and  8. 

*  Joint  Rules  of  the  Governor  and  the  Prison  Commission  Governing  Application 
for  Executive  Clemency.     Rule  4. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  49 

newly  discovered  evidence  shall  be  taken  in  accordance  with  the  statute  of  this 
state  relating  to  depositions  in  chancery;  and  notice  of  the  time  and  place 
for  the  taking  of  the  same  shall  be  given  by  serving  a  copy  of  such  notice  upon 
the  state's  attorney  of  the  county  wherein  the  defendant  was  convicted. 
Evidence  of  facts  and  circumstances  occurring  since  the  trial  and  conviction 
may  be  presented  by  affidavit,  the  officer  before  whom  the  affidavit  is  made 
certifying  that  the  persons  making  the  affidavit  are  respectable  persons,  whose 

testimony  is  entitled  to  credit Provided,  that  official  statements  of 

matters  of  fact  made  by  officials  of  the  prison  need  not  be  sworn  to.^ 

A  rule  very  similar  to  the  above  in  Illinois  is  also  followed  in  lowa.^ 
In  West  Virginia  when  an  application  is  based  on  newly  discovered 
evidence,  the  evidence  must  be  such  as  would  probably  have  produced 
an  acquittal  on  a  second  trial,  and  must  be  certified  by  the  prosecuting 
attorney  and  the  trial  judge  as  germane,  and  an  opinion  given  by  them 
as  to  its  credibility.^ 

In  applications  in  Washington  based  upon  the  grounds  of  a  mistrial 
or  improper  conviction,  the  allegations  must  be  sustained  by  such 
reasons  and  evidence  as  would  have  been  good  ground  for  a  new  trial; 
and  in  applications  based  upon  the  ground  of  newly  discovered  evidence, 
the  evidence  must  be  such  as  would,  in  all  probability,  have  produced 
an  acquittal  on  a  second  trial;  and  where  the  court  has  overruled  any 
motion  for  a  new  trial,  based  upon  any  of  the  foregoing  grounds,  such 
questions  wUl  not  be  reconsidered,  except  on  the  recommendation  of  the 
judge  before  whom  such  motion  was  heard.''  In  Kansas  and  West  Virginia 
applications  for  clemency  will  not  be  considered  pending  an  appeal  of 
the  case  to  an  appellate  court. 

It  is  apparent  that  there  is  some  limitation  on  the  kind  and  nature 
of  evidence  presented  before  pardon  authorities,  but  one  may  conclude 
in  general  that  in  most  states  a  hearing  offers  opportunity  for  the  presen- 
tation of  any  kind  of  evidence,  unhampered  by  legal  technicalities  as 
to  its  admissibility,  and  that  such  evidence  is  not  received  under  oath. 

ATTENDANCE   OF   WITNESSES 

Another  question  in  connection  with  hearings  is  whether  pardon 
authorities  can  compel  the  attendance  of  witnesses  and  force  them  to 
testify.     There  seems  to  be  a  striking  diversity  on  this  matter  in  the 

'  Rules  and  Laws  Controlling  the  Division  of  Pardons  and  Paroles,  etc.     Rule  4. 

'  Rules  of  the  Iowa  Board  of  Parole.     Rule  24. 

3  Rules  and  Regulations  Governing  the  Pardon  Attorney.     Rule  1 1 . 

*  Rules  of  Executive  Practice  in  Relation  to  Pardons.     Rule  4,  p.  23  (Washington). 


50      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

several  states.  In  the  following  states  the  pardoning  authority  does 
possess  this  power:  California,  Colorado,  Connecticut,  Delaware,  Idaho, 
Indiana,  Maryland,  Massachusetts,  Minnesota,  Nevada,  New  York, 
North  Carolina,  Utah,  Vermont,  and  Wyoming.  On  the  other  hand, 
in  the  following  states  the  pardoning  power  cannot  compel  the  attendance 
of  witnesses  nor  force  them  to  give  testimony:  Alabama,  Arkansas, 
Georgia,  Illinois,  Iowa,  Michigan,  Nebraska,  New  Mexico,  Oklahoma, 
Pennsylvania,  and  South  Dakota.  Virginia  can  compel  attendance  of 
witnesses  in  some  cases  only.  It  would  appear  that  this  authority  is 
possessed  by  the  pardoning  power  in  North  Dakota,  Oregon,  and 
Wisconsin,  although  it  seems  that  it  has  never  been  used  and  that  there 
is  no  occasion  for  its  use.  The  latter  part  of  this  statement  applies  also 
to  most  of  the  states  in  the  first  group  for  it  appears  that  witnesses  are 
not  subpoenaed  nor  compelled  to  give  testimony,  although  in  South 
Carolina  the  board  may  punish  for  contempt  in  its  presence. 

"ex  parte"  hearings 

Hearings  are  attended  by  those  who  are  interested.  This  means 
that  those  usually  present  are  attorneys  and  witnesses  seeking  clemency 
for  those  criminals  whose  petitions  are  under  consideration.  Although, 
as  noted  above,  a  number  of  states  require  that  public  notice  of  the 
hearing  be  given,  yet  the  public  is  otherwise  occupied.  It  does  not  make 
it  a  point  to  be  present  to  offer  objection  to  the  granting  of  clemency. 
Even  though  a  number  of  states  such  as  Maine,  Maryland,  Massachu- 
setts, Michigan,  Nebraska,  New  Hampshire,  Utah,  and  others  notify 
the  prosecuting  attorney,  and  he  enjoys  the  privilege  of  appearing  in 
order  to  protest  if  he  so  desires,  yet  in  nearly  all  states  the  hearings 
are  ex  parte.  In  Connecticut  and  Pennsylvania  a  state's  attorney  is 
present,  and  in  Wisconsin  a  representative  from  the  attorney-general's 
ofi&ce  sits  with  the  governor  at  hearings  and  advises  him. 

The  general  assumption  is,  however,  that  the  pardoning  authority 
sits  not  only  as  a  judicial  body  to  weigh  evidence,  but  also  safeguards 
the  interests  of  the  state.  But  where  this  double  duty  is  thrust  upon 
the  board  or  other  pardoning  authority  there  is  a  chance  for  too  much 
leniency  to  be  extended.  Such  a  view  as  this  is  encountered  in  Oregon 
where,  in  the  past,  clemency  has  been  freely  granted.  As  a  result  of 
this  situation  a  tendency  has  manifested  itself  in  some  states  toward  a 
division  of  point  of  view  on  the  part  of  different  members  of  the  board. 
In  those  boards  of  which  the  attorney  general  is  a  member,  this  official 
often  regards  himself  as  the  protector  of  the  interests  of  the  state  rather 


ADMINISTRATION  OF  PARDON  AUTHORITIES  51 

than  as  an  unbiased  officer  who  listens  to  both  sides.  He  feels  that  there 
is  but  one  side  being  presented  and  therefore  it  is  incumbent  upon  him 
to  oppose.  Thus  in  Idaho  the  impression  was  obtained  from  several 
official  sources  that  the  attorney  general  was  the  "hard-hearted"  member 
of  the  Board;  and  inmates  in  the  state  prison  expressed  themselves  to 
the  effect  that  the  road  to  freedom  would  be  much  easier  if  it  were  not 
for  this  member  of  the  Board.  A  similar  view  was  also  obtained  in 
Utah,  in  fact  this  official  admitted  it  and  criticized  other  members  of 
the  Board  for  their  lenient  attitude  toward  petitioners  for  clemency. 
In  Nevada  it  is  generally  felt  that  those  members  of  the  Board  who 
belong  to  the  legal  profession  are  less  inclined  to  grant  clemency  than 
other  members.  But  the  reply  secured  from  those  members  under 
criticism  is  that  a  hearing  is  not  a  trial  and  therefore  trial  methods  and 
procedure  are  unnecessary. 

APPLICANTS   REPRESENTED   BY  COUNSEL 

In  most  states  petitioners  for  clemency  may  be  represented  by 
counsel.  Attorneys  may  either  appear  in  person  or  file  briefs  in  clemency 
hearings  in  Alabama,  Arkansas,  Colorado,  Connecticut,  Georgia,  Idaho, 
Indiana,  Iowa,  Maine,  Maryland,  Massachusetts,  Michigan,  Montana, 
Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  New  Mexico,  North 
Carolina,  Oklahoma,  Pennsylvania,  South  Dakota,  Utah,  Vermont, 
Virginia,  Washington,  Wisconsin,  and  Wyoming.  In  Connecticut 
counsel  is  limited  to  fifteen  minutes  for  presentation  of  questions  of 
fact;  in  Iowa  oral  arguments  or  statements  are  not  to  exceed  thirty 
minutes  except  by  special  permission;  in  Colorado  statements  of  counsel 
are  to  be  brief  and  short;   the  same  is  true  in  Utah.     In  Pennsylvania 

except  in  capital  cases,  not  more  than  fifteen  minutes  will  be  allowed  applicant 
for  presentation  and  argument  of  his  case  in  chief,  unless  by  special  leave; 
and  a  like  period  for  the  representation  of  the  Commonwealth  in  opposition; 
and  reasonable  time  will  be  allowed  the  applicant  to  reply.' 

Also  in  this  state  petitions  for  rehearing,  except  in  capital  cases,  will  be 
considered  by  the  Board  only  on  papers  filed  in  the  nature  of  briefs, 
and  no  oral  argument  will  be  heard  except  by  special  leave.^ 

But  in  spite  of  this  general  permission  for  counsel  to  represent  an 
applicant  for  clemency,  there  seems  to  be  a  feeling  among  many  pardon 
authorities  that  no  good  purpose  is  served  by  allowing  professional 

'  Rules  of  Board  of  Pardons  (Pennsylvania).     Rule  13. 
'  Rules  of  Board  of  Pardons  (Pennsj'lvania).     Rule  7. 


52      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

counsel  to  become  involved  in  clemency  cases.  The  Ohio  Clemency 
Board  makes  this  statement: 

Prisoners  make  their  own  applications  for  pardon,  and  the  only  necessary 
outlay  of  money,  to  the  applicant,  is  the  small  item  for  legal  advertising.  Use 
of  money  is  discouraged  and  prisoners  are  informed  its  use  will  militate  against 
them.^ 

Likewise  the  Michigan  Advisory  Board  says: 

It  is  inadvisable  and  nothing  will  be  gained  by  a  prisoner  or  his  relatives  or 
friends  expending  money  in  the  employment  of  attorneys  or  other  representa- 
tives to  draw  papers  or  to  appear  before  the  Governor  or  the  Board  of  Pardons. 
All  cases  will  be  given  equal  consideration  and  action  will  be  taken  as  promptly 
as  possible.^ 

In  West  Virginia  no  oral  arguments  will  be  heard  by  the  pardon  attorney. 
Each  case  must  be  complete  in  the  written  papers  submitted.^ 

A  personal  investigation  in  a  group  of  western  states  reveals  the 
fact  that  there  is  a  strong  antipathy  toward  the  injection  of  professional 
attorneys  into  clemency  cases.  Colorado  limits  their  time  for  argument 
considerably;  California,  like  West  Virginia,  refuses  to  permit  oral 
argument.  In  Idaho  it  is  said  that  a  few  attorneys  tend  to  specialize 
in  this  kind  of  work,  especially  one  attorney  who  is  an  ex-convict.  As  a 
result  attorneys  engaged  in  this  phase  of  practice  are  persona  non  grata 
in  Idaho.  In  Utah  not  more  than  fifteen  minutes  are  allowed  for  the 
oral  presentation  of  an  application.  Judges  of  the  Supreme  Court, 
who  are  members  of  the  Board  in  this  state,  say  the  appearance  of  counsel 
is  not  encouraged,  and  that  a  case  is  not  helped  thereby.  A  former 
governor  of  the  state,  who  was  chairman  of  the  Board  for  eight  years, 
makes  a  similar  statement.  A  former  attorney-general,  also  a  member 
of  the  Board  in  this  state,  says  that  the  Board  is  rather  suspicious  of 
some  attorneys  who  misrepresent  facts. 

In  Nevada  the  Rules  of  the  Board  of  Pardons  provide  that 

Attorneys  shall  first  present  their  evidence  through  witnesses,  affidavits, 
the  records  or  documents,  and  then  argue  their  cases  concisely  and  not  exceed- 
ing one-half  hour  for  each  counsel  appearing,  unless  additional  time  be  granted 
by  the  Board,  and  in  the  event  that  an  attorney  digresses  from  the  evidence, 
or  states  facts  not  supported  thereby,  or  reiterates  in  his  argument,  he  shall 

'  First  Annual  Report  of  Ohio  Board  oj  Clemency  (1918),  p.  10. 

*  Rules  and  Regulations  Governing  the  Paroling  of  Prisoners  (Michigan).  Rule 
15,  p.  24. 

3  Rules  and  Regulations  Governing  the  Pardon  Attorney  (West  Virginia). 
Rule  14. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  53 

be  called  to  order.     Papers  shall  be  filed  separately,  or  attached  before  they  are 
read  in  evidence,  and  shall  not  be  withdrawn  without  the  order  of  the  Board.' 

Although  the  Rules  provide  for  the  appearance  of  counsel,  the  secre- 
tary of  the  Board  says  that  legal  arguments  are  discouraged.  This 
statement  is  further  explained  by  the  governor  of  Nevada  who  says, 
"There  used  to  be  a  group  of  attorneys  who  specialized  in  obtaining 
pardons  and  who  pestered  the  life  out  of  the  Board.  This  group  has 
been  broken  up." 

In  Nevada  it  is  also  provided  that 

The  money  allowed  by  the  State  to  a  prisoner  upon  his  discharge  is  solely 
for  the  purpose  of  aiding  him  until  he  can  find  employment,  and  must  not  be 
used  for  attorney's  fees  to  employ  counsel  to  present  his  case  to  the  Board 
of  Pardons  or  Parole.  Prisoners  shall  not  pay,  or  agree  to  pay  any  portion  of 
their  discharge  money  for  services  of  an  attorney  to  present  their  case,  nor 
shall  any  attorney  accept  or  receive,  directly  or  indirectly,  any  portion  of 
said  money  for  such  services.^ 

The  Rules  of  the  Parole  Board  in  Oregon  provide  that  attorneys 
and  persons  not  acquainted  with  the  facts  and  circumstances  of  a  case 
under  consideration  shall  not  be  heard  in  an  application  for  parole  or 
pardon  referred  to  the  Board  by  the  governor.^  For  this  reason  oral 
arguments  are  not  made  by  attorneys  in  Oregon  but  sometimes  written 
briefs  are  presented.  The  Board  aims,  however,  to  exclude  all  attorneys 
from  any  relation  with  clemency  cases.  As  the  Governor's  secretary 
says,  "They  are  not  wanted." 

Montana  provides  that  no  prisoner  shall  be  permitted  to  pay  out 
any  money  belonging  to  him  and  in  the  possession  of  the  prison  warden, 
for  the  purpose  of  employing  counsel  to  assist  in  obtaining  pardons  or 
paroles,  or  to  employ  counsel  in  any  other  capacity  without  first  obtaining 
permission  of  the  Board  of  State  Prison  Commissioners.-* 

Kentucky  has  probably  gone  farther  than  any  other  state  in  excluding 
attorneys  and  others  from  aiding  convicts  to  secure  clemency.  The 
statutes  of  that  state  provide. 

If  any  person  shall  for  fee  or  reward,  or  promise  thereof,  aid  or  assist  in 
procuring  the  governor  to  grant  or  refuse  a  pardon,  remission  or  respite  of  any 
punishment  or  fine,  he  shall  be  fined  not  less  than  S25.00  nor  more  than  S500.00.S 

•  Rules  of  the  Board  of  Pardons,  etc.  (Nevada).     Rule  12. 

*  Rules  of  the  Board  of  Pardons,  etc.  (Nevada).     Rule  14. 
i  Rules  of  the  Parole  Board  (Oregon).     Rule  22. 

■t  Rules  for  the  Government  of  State  Prison  (Montana).     Rule  118. 
'Kentucky  Statutes,  1915,  sec.  1370. 


54     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

It  is  evident  that  the  appearance  of  counsel  in  clemency  cases  is 
not  desired  in  a  number  of  states.  This  is  shown  by  legislation  of  the 
character  above  indicated,  and  by  the  statement  of  some  boards  that 
employment  of  counsel  will  not  help  the  cause  of  any  criminal.  But  in 
spite  of  this  there  is  room  to  question  if  the  appearance  of  a  capable 
attorney,  of  high  integrity  and  governed  by  professional  ethics,  is  not 
of  distinct  value  and  service  to  an  applicant  for  clemency.  An  observer 
at  clemency  hearings  who  notes  the  illogical,  unsystematic,  and 
haphazard  manner  in  which  pleas  are  made  by  uneducated,  poorly 
prepared,  and  frightened  relatives  and  friends  in  behalf  of  applicants 
cannot  help  feeling  that  the  cause  of  the  applicant  is  often  poorly  pre- 
sented. If,  in  the  place  of  these  persons,  a  capable  and  conscientious 
attorney  could  take  charge  of  the  case,  present  evidence  systematically, 
and  logically  argue  the  cause  of  the  applicant,  there  is  reason  to  believe 
that  the  authorities  would  be  in  possession  of  fuller  evidence  than  is 
now  the  case  in  many  states. 

REHEARINGS 

There  is  a  type  of  criminal  who  is  constantly  seeking  his  liberty. 
Either  he  in  person,  or  friends  and  relatives  in  his  behalf,  are  continually 
soliciting  pardon  authorities  for  clemency.  If  his  application  is  denied 
he  is  not  materially  discouraged  but  persistently  sets  to  work  again  to 
bring  his  case  before  these  authorities.  Usually  the  merits  of  the  case 
have  been  gone  into  at  the  first  hearing.  Yet,  without  any  new  evidence 
or  other  reason  for  a  reconsideration  he  hopes  that  success  will  at  last 
reward  his  efforts.  To  prevent  too  frequent  reapplication  in  such 
instances,  which  serv^es  no  useful  purpose  and  only  consumes  the  time 
of  the  pardon  authorities,  these  officials  in  some  states  have  felt  com- 
pelled to  limit  the  privilege  of  asking  for  a  rehearing. 

In  Arizona,  Louisiana,  Pennsylvania,  Utah,  West  Virginia,  and 
Wyoming  an  application  for  a  rehearing  may  not  be  filed  within  six 
months  of  the  refusal  of  a  previous  application.  Pennsylvania  makes  an 
exception  in  capital  cases,  however,  but  adds  that  new  and  substantial 
grounds  or  reasons  must  be  given  to  warrant  a  reconsideration.  Such 
reconsideration  will  be  in  the  form  of  an  examination  of  briefs  only. 
No  oral  arguments  may  be  presented.  In  Utah  the  Pardon  Board  may 
grant  a  rehearing  based  on  special  reasons,  within  less  than  sLx  months 
from  the  previous  hearing.  In  West  Virginia  and  Wyoming  new  and- 
material  facts  must  also  be  submitted  to  justify  a  reconsideration. 
Of  course  the  pardoning  authorities  possess  full  discretion  in  determining 
whether  new  and  material  evidence  has  been  submitted. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  55 

In  Georgia,  Michigan,  Mississippi,  and  Nevada  a  reconsideration 
cannot  take  place  within  a  year  of  a  previous  hearing.  This  statement 
is  qualified  in  the  case  of  Georgia  by  the  addition  "unless  new  facts  come 
to  light,"  and  in  Nevada  by  the  statement  "without  the  consent  of  the 
majority  of  the  Board." 

In  Colorado  a  prisoner  cannot  again  make  application  for  executive 
clemency  until  the  expiration  of  two  years  from  the  date  of  the  last 
hearing  except  at  the  request  of  the  governor  or  a  member  of  the  Board 
of  Pardons. 

Some  states  do  not  fix  any  time  limit  before  applications  for  a 
rehearing  may  be  made,  but  provide  other  requirements  which  must  be 
met  before  a  reconsideration  will  be  granted.  California  provides  that 
no  application  refused  by  the  present  or  a  preceding  governor  will  be 
reconsidered  unless  substantial  grounds  for  reopening  the  case  are 
formally  presented.  But  any  case  may  be  reconsidered  upon  the  recom- 
mendation of  the  Board  of  Prison  Directors. 

In  Illinois  applications  for  rehearing  will  be  considered  upon  the 
following  conditions  only: 

Four  copies  of  the  petition  therefor  shall  be  filed  with  the  clerk  at  least 
ten  days  preceding  the  first  day  of  the  term.  Such  petition  shall  set  forth 
the  grounds  upon  which  the  application  is  made,  provided,  that  the  governor 
may  in  his  discretion  remand  any  case  to  the  Division  of  Pardons  and  Paroles 
and  order  a  rehearing  thereof,  which  shall  be  had.' 

If  an  application  is  once  denied  on  its  merits  in  Minnesota,  no 
subsequent  application  may  be  filed  without  the  consent  of  two  members 
of  the  Pardon  Board.  In  North  Carolina  a  reconsideration  will  not  be 
permitted  unless  new  facts  are  submitted. 

In  a  number  of  states  such  as  California,  Illinois,  Nevada,  North 
Carolina,  and  Pennsylvania  the  requirements  concerning  notice  and 
publication  of  hearing  must  again  be  complied  with  before  a  rehearing 
is  granted. 

FILING   OF   ACTION   TAKEN   IN   CLEMENCY   CASES 

It  is  a  constitutional  or  statutory  requirement  in  the  great  majority 
of  states  that  the  governor  shall  submit  to  the  legislature  at  each  regular 
session  a  list  of  persons  to  whom  clemency  has  been  extended,  together 
with  other  data  concerning  each  one.  Kentucky,  Louisiana,  Minnesota, 
New  Hampshire,  New  Jersey,  New  Mexico,  Pennsylvania,  Rhode  Island, 
Tennessee,  Texas,  and  Vermont  seem  to  be  the  only  states  where  this 

■  Rules  Controlling  Applications  for  Pardons  (Illinois).     Rule  5. 


56      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

is  not  required.  But  in  Kentucky  the  governor  must  file  a  statement  of 
his  reasons  which  is  open  to  public  inspection.  In  Pennsylvania  the 
recommendation  and  reasons  of  the  Board  are  to  be  filed  in  the  office  of 
the  secretary  of  the  commonwealth.  In  South  Carolina,  if  the  governor 
does  not  adopt  the  recommendations  of  the  Board  he  must  submit  his 
reasons  to  the  General  Assembly,  whereas  such  action  is  not  required 
if  he  does  adopt  the  Board's  recommendations.  In  South  Dakota,  where 
the  pardoning  power  is  divided  between  the  governor  and  the  Pardon 
Board,  the  governor  must  report  his  actions  to  the  legislature,  whereas 
the  action  of  the  Board  is  filed  in  the  office  of  the  secretary  of  state. 
In  Texas  the  governor  does  not  report  to  the  legislature  but  files  his 
reasons  in  the  office  of  the  secretary  of  state. 

In  most  of  the  states  requiring  these  reports  it  is  also  a  constitutional 
or  statutory  provision  that  the  reasons  for  granting  clemency  shall  be 
stated.  It  appears  that  only  in  Indiana,  Kansas,  Louisiana,  Nevada, 
New  York,  and  Oklahoma  no  statement  of  reasons  is  required  to  accom- 
pany the  report  of  the  pardoning  authority. 

PARDON   UNDER   SEAL 

The  method  of  officially  authenticating  the  action  of  pardon  au- 
thorities in  granting  clemency  varies  in  different  states.  In  Alabama, 
Arizona,  Arkansas,  California,  Colorado,  Georgia,  Indiana,  Kansas, 
Maine,  Maryland,  Massachusetts,  Michigan,  Nebraska,  Nevada, 
Pennsylvania,  South  Dakota,  Utah,  Vermont,  and  Virginia  the  grant  of 
clemency  is  under  the  seal  of  the  state  countersigned  by  the  secretary 
of  state.  In  Connecticut,  Minnesota,  and  North  Dakota  the  pardon 
board  has  its  own  seal  with  which  the  board  attests  its  action.  The 
State  Prison  Board  of  Missouri  also  possesses  a  seal  of  which  all  courts 
are  required  to  take  judicial  notice.  In  Rhode  Island  the  Parole  Board 
must  affix  its  seal  to  paroles  which  must  be  signed  by  the  governor  and 
countersigned  by  the  secretary  of  state. 

In  Iowa  clemency  is  granted  under  the  seal  of  the  governor  with 
his  signature  attached.  In  North  Carolina  it  is  granted  under  the  seal 
of  the  state  but  countersigned  by  the  private  secretary  of  the  governor 
instead  of  the  secretary  of  state. 

In  Idaho,  New  Hampshire,  and  Wyoming  pardons,  when  granted, 
are  not  under  seal. 

In  no  state  where  the  countersigning  of  the  secretary  of  state  is 
required  does  this  official  have  any  discretionary  power  in  the  matter. 
His  signing  is  regarded  purely  as  a  ministerial  act. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  57 

RELATION   OF   GOVERNOR   TO   ADVISORY   BOARD 

An  interesting  problem  in  administration  is  one  involving  the 
relation  of  the  governor  to  the  advisory  pardon  board.  Does  the 
governor  closely  follow  the  recommendations  of  the  board,  or  is  he 
inclined  to  rely  upon  his  own  judgment  ?  Does  the  board  relieve  him 
materially  of  the  burden  of  work  of  this  character  through  his  general 
acceptance  and  acquiescence  in  its  recommendations,  or  does  he  assume 
that  he  must  investigate  independently  of  the  board  and  act  in  the  light 
of  his  own  investigation  ?  In  those  states  where  there  is  no  advisory 
authority,  or  where  the  governor  is  merely  a  member  of  the  board,  and 
clemency  can  only  be  granted  through  board  action,  this  problem  does 
not  arise.  But  in  many  states  where  the  board  is  advisory  in  character 
and  the  governor  possesses  final  authority  to  act,  the  question  of  actual 
administration  is  a  vital  one.  Furthermore  the  policy  in  this  regard  in 
any  state  may  be  a  fluctuating  one  since  each  governor  may  have 
different  views  in  this  matter. 

In  Arizona  the  governor  does  not  always  follow  the  recommendations 
of  the  Board  of  Pardons  and  Paroles.  There  are  several  instances 
where  the  governor  has  refused  to  follow  the  recommendations  of  this 
board.  It  is  the  custom  of  Governor  Campbell  thoroughly  to  investigate 
every  case  placed  before  him  and  if,  in  his  judgment,  the  interests  of 
justice  and  society  will  not  be  subserved  by  the  release  of  the  prisoner 
he  takes  negative  action  in  spite  of  a  favorable  report  of  the  Board. 
In  Alabama  clemency  is  not  granted  as  a  rule  unless  the  Pardon  Board 
recomm.ends  it. 

In  California  the  governor,  it  is  said,  sometimes  acts  contrary  to 
the  advice  of  the  Board.  Likewise  in  Colorado  he  does  ''but  very 
seldom  indeed."  In  Georgia  no  application  for  clemency  is  granted  by 
the  governor  if  the  Advisory  Board  refuses  to  recommend  it,  except  in 
capital  cases.  In  cases  that  are  recommended  for  clemency  the  governor 
considers  the  facts  of  each  case,  such  as  the  circumstances  of  the  crime, 
the  length  of  imprisonment,  deportment  of  the  convict,  the  prisoner's 
reputation  previous  to  the  commission  of  the  crime,  the  attitude  of  the 
trial  judge  and  the  solicitor-general.  He  decides  each  case  on  its  own 
merits  and  occasionally  acts  contrary  to  the  favorable  recommendation 
of  the  Board. 

Approximately  five  hundred  applications  for  pardon  or  commutation 
of  sentence  are  heard  each  year  by  the  Division  of  Pardons  and  Paroles 
in  Illinois.  Favorable  recommendations  are  made  to  the  governor  each 
year  in  about  twenty  cases  at  the  penitentiaries,  and  in  about  the  same 


58      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

number  of  cases  from  the  bridewell.  The  governor  never  grants  clem- 
ency contrary  to  the  recommendation  of  the  Division  of  Pardons  and 
Paroles,  at  least  Governor  Lowden  never  did,  and  Governor  Small 
does  not. 

In  Indiana  the  recommendation  of  the  Board  of  Pardons  is  regarded 
as  final  by  the  governor  of  the  state.  Governor  Goodrich  approved 
every  recommendation  during  the  first  three  years  of  his  term  of  ofl&ce, 
and  the  prior  governor,  during  his  four-year  term,  adopted  the  Board's 
advice  in  all  but  two  cases.  It  is  said,  however,  that  only  about  one- 
third  of  all  clemency  petitions  in  Indiana  are  referred  to  the  Board  by 
the  governor. 

Governor  Sleeper  of  Michigan  referred  all  applications  for  clemency 
to  the  Pardon  Board  for  its  investigation  and  report.  The  cases  were 
usually  discussed  with  the  governor  before  the  Board  made  any  recom- 
mendation and,  as  a  result,  all  of  its  recommendations  were  concurred 
in  by  the  governor.  There  seem  to  have  been  instances  in  which  he  and 
the  Pardon  Board  were  not  agreed  at  the  outset,  but  they  always  reached 
an  agreement  before  a  final  disposition  was  made  of  such  cases.  It  is 
asserted  that  during  a  prior  Democratic  state  administration  the 
governor  granted  clemency  contrary  to  the  recommendation  of  the 
Board. 

Governor  Bilbo  of  Mississippi  referred  all  pardon  petitions  to  the 
Board  of  Pardons.  All  favorable  recommendations  of  the  Board  were 
granted  by  him,  and  no  grants  of  pardon  were  made  by  him  contrary 
to  the  advice  of  the  Board.  In  Nebraska  Governor  McKelvie  has 
granted  clemency  contrary  to  the  advice  of  the  Board,  or  the  Secretary 
of  the  Department  of  Public  Welfare  who  has  replaced  the  Board,  but 
only  in  very  exceptional  cases.  In  this  state  more  than  90  per  cent  of 
the  applications  for  clemency  are  referred  by  the  governor  to  the  Depart- 
ment of  PubUc  Welfare. 

In  New  Hampshire  the  governor  cannot  grant  a  pardon  without 
the  consent  of  the  Council,  but  he  may  refuse  to  grant  a  pardon  by 
refusing  to  refer  a  clemency  petition  to  the  Council.  The  governor  of 
North  Carolina  seldom  grants  clemency  contrary  to  the  recommendations 
of  the  Board.  In  Oklahoma  it  is  only  in  rare  instances  that  the  governor 
acts  contrary  to  the  advice  of  the  pardon  attorney.  The  governor  of 
Oregon  sometimes  acts  independently  of  the  Board  and  even  contrary 
to  the  suggestions  of  the  Board. 

The  governor  of  Pennsylvania  does  not  grant  clemency  contrary  to 
the  recommendations  of  the  Pardon  Board  since  such  action  is  prohibited 


ADMINISTRATION  OF  PARDON  AUTHORITIES  59 

by  the  state  constitution.  He  may,  however,  refuse  to  pardon  in  cases 
recommended  favorably  by  the  Board,  but  this  is  very  rarely  done — in 
less  than  i  per  cent  of  such  cases. 

Governor  Cooper  of  South  CaroHna  referred  all  clemency  petitions 
to  the  Board  of  Pardons.  He  usually  adopted  the  recommendations  of 
the  Board,  though  in  some  cases — not  to  exceed  20  per  cent — he  did  not. 
In  no  case  did  he  grant  clemency  when  the  Board's  reports  were  against 
such  action,  but  in  some  instances  he  did  not  grant  clemency  even  though 
the  Board  recommended  it. 

Very  nearly  without  exception  all  applications  for  clemency  are  first 
passed  upon  by  the  Advisory  Board  in  Texas.  In  case  the  application 
is  presented  to  the  governor  first,  it  is  in  most  instances  referred  to  the 
Board  for  investigation.  In  almost  all  cases  the  governor  follows  the 
recommendations  of  the  Board — -in  a  few  instances  this  is  not  the  case. 
Whenever  clemency  is  recommended  by  the  Board  it  is  authorized  by 
the  governor,  but  there  are  a  few  cases  in  which  he  has  granted  it  contrary 
to  the  advice  of  the  Board  of  Pardon  Advisers.  In  Wyoming  a  few 
pardons  in  the  past  have  been  granted  without  the  consent  of  the 
Pardon  Board. 

From  this  summary  of  the  relation  of  the  governor  to  the  advisory 
pardoning  authority  it  would  appear  that  in  some  of  these  states  the 
governor  occasionally  disregards  the  advice  and  recommendation  of 
the  advisory  board.  But  such  disregard  is  exceptional  and  unusual. 
In  the  great  majority  of  cases  acted  upon  the  governor  follows  the 
suggestion  of  the  Board.  This  would  seem  to  indicate  that  advisory 
pardon  authorities  do  function  and  that  state  governors  rely  almost 
entirely  upon  their  recommendations. 

POLITICAL   INFLUENCE   AND   ABUSE    IN   GRANTING   CLEMENCY 

An  attempt  to  determine  whether  the  pardoning  power  has  been 
abused  in  the  several  states,  and  whether  political  pressure  and  manipula- 
tion have  been  brought  to  bear  in  order  to  secure  clemency,  has  met  with 
indifferent  success.  Press  accounts  have  occasionally  heralded  the  fact 
that  certain  governors  have  been  emptying  the  state  prisons  on  various 
pretexts,  and  no  doubt  there  have  been  sporadic  instances  in  the  not 
far  past  in  difierent  states  in  the  Union.  It  is  still  remembered  that 
Governor  Donaghey  of  Arkansas  pardoned  396  prisoners  at  Christmas, 
1912,  as  a  rebuke  to  the  convict-labor  system  of  that  state.' 

The  unwise  and  undiscriminating  exercise  of  clemency  by  Governors 
Blease  of  South  Carolina,  Comer  of  Alabama,  and  West  of  Oregon  has 

'  World's  Work,  XXV,  382. 


6o      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

led  many  to  believe  that  this  power  has  been  scandalously  abused  in 
this  country.  When  Governor  Dix  of  New  York  pardoned  Albert  T. 
Patrick  without  consulting  Recorder  Gofif,  the  trial  judge,  or  the  prose- 
cuting attorney,  it  produced  a  wave  of  dissent  and  caused  the  Outlook 
to  say,  "The  history  of  the  Patrick  case  seems  to  us  to  make  it  very  clear 
that  no  one  man,  whether  he  be  governor  of  a  state  or  President  of  the 
United  States,  should  have  vested  in  him,  without  any  check  or  super- 
vision, the  power  to  pardon  criminals."^  Isolated  instances  such  as 
these  can  be  cited  as  evidence  of  the  failure  of  our  system  of  clemency, 
but  they  fail  to  answer  the  question  whether  our  system  is  a  failure 
because  of  constant  abuse,  or  whether  these  are  sporadic  instances. 

It  is  far  more  difficult  to  determine  whether  there  has  been  a  constant 
but  less  spectacular  abuse  which  has  been  deUberate  in  character. 
A  personal  attempt  to  secure  such  information  from  the  several  states 
has  not  resulted  in  that  degree  of  success  which  would  justify  positive 
convictions  in  the  matter.  It  is  a  problem  which  cannot  be  proved  from 
statistics  entirely  but  must  rest  upon  individual  opinion  and  judgment. 
In  CaUfornia,  Connecticut,  Iowa,  Illinois,  Maryland,  Massachusetts, 
Nebraska,  Nevada,  New  Hampshire,  New  Mexico,  North  Carolina, 
Ohio,  Pennsylvania,  Vermont,  and  Virginia  pardon  authorities  assert 
that  there  has  been  no  abuse  of  clemency.  In  Colorado,  Georgia,  Maine, 
Michigan,  and  Oklahoma  it  seems  to  be  a  matter  of  difference  of  opinion 
as  to  whether  there  has  been  abuse  in  the  extension  of  clemency.  In 
Alabama  there  is  a  feeling  that  perhaps  there  has  been  some  abuse  but 
that  it  has  not  been  flagrant.  In  Arkansas  admission  is  made  that 
there  has  indeed  been  serious  abuse  in  the  past.  A  belief  exists  in 
Idaho  that  some  previous  Pardon  Boards  have  been  too  lenient. 

Pardon  authorities  in  Indiana  assert  that  there  has  been  no  recent 
abuse  in  that  state.  This  statement  is  challenged  by  a  speaker  before 
the  Democratic  Editorial  Association  in  Fort  Wayne,  July  3,  1919, 
who  said: 

We  further  charge  Governor  Goodrich  with  flagrant  abuse  of  executive 
power  in  the  pardoning  and  paroling  of  convicts  and  the  consequent  dis- 
respect for  the  judgments  of  the  courts  of  Indiana,  all  as  shown  by  the  records 
on  file  in  the  secretary  of  state's  ofiice.  Governor  Goodrich  in  two  and  one- 
half  years  has  released  more  convicts  from  prison  sentences  than  were  released 
during  the  combined  terms  of  Governors  Marshall  and  Ralston.  The  records 
in  the  secretary  of  state's  office  show  that  he  has  released  670  convicts,  but 
that  record  is  not  complete,  for  the  reason  that  Governor  Goodrich  has  inaugu- 

'  Outlook,  CII,  791. 


ADMINISTRATION  OF  PARDON  AUTHORITIES  6i 

rated  a  system  of  "temporary  paroles"  unknown  to  either  law  or  reason,  and 
of  which  no  account  is  kept,  and  of  which  there  is  no  way  of  checking  up  the 
personal  and  political  favorites  whom  he  has  released  under  this  unique  and 

unknown  procedure No  wonder  the  Indianapolis  News  cries  out  in 

surprise  "that  a  man  competent  to  be  Governor  of  Indiana  should  let  himself 
be  persuaded  by  lawyers  or  others,  or  through  political  influence,  to  use  his 
pardoning  power  so  freely."' 

In  North  Dakota  there  was  some  complaint  on  this  subject  several 
years  ago,  but  there  has  been  no  criticism  of  any  consequence  during  the 
present  administration. 

When  Governor  West  of  Oregon  was  elected  to  office  the  treatment 
of  prisoners  in  the  penitentiary  of  that  state  was  said  to  be  inhuman. 
The  new  governor,  who  in  his  earlier  life  had  been  a  butcher's  boy,  a 
sheep  herder,  and  a  prospector  in  the  Klondike,  had  developed  a  powerful 
faith  in  the  desire  of  humanity  to  do  right  if  given  a  fair  chance.  He 
entered  office  quoting  Emerson,  Voltaire,  and  Montaigne.  He  was 
agreed  with  Emerson  that  distrust  is  costly,  and  that  "we  make  by 
distrust  the  thief,  the  burglar,  the  incendiary,  and,  by  the  court  and 
the  jail  we  keep  him  so."  The  "honor  system"  evolved  from  this 
view.  It  merely  meant  that  a  convict  gave  his  word  of  honor  that  if 
released  on  parole  he  would  not  attempt  to  escape  but  would  live  an 
honest  and  straight  life.^ 

Governor  West  in  his  desire  to  humanize  the  treatment  of  the 
criminal  became  too  lenient.  The  feeling  that  he  had  abused  the 
pardoning  power  became  widespread.  This  feeling  found  expression  in 
the  inaugural  message  of  Governor  Withycombe  to  the  legislature  in 
19 1 5  when  lie  said: 

The  feature  of  the  prison  policy  of  the  past  which  probably  has  most  con- 
cerned the  general  public  has  been  the  tendency  toward  exaggerated  leniency. 
I  desire  at  this  time  to  state  emphatically  that  it  will  be  the  policy  of  the 
governor  henceforth  to  entertain  all  due  respect  for  judicial  decisions,  and  where 
judge  and  jury  have  passed  upon  a  case  and  sentence  has  been  pronounced, 
only  under  the  most  exceptional  circumstances  will  I  feel  warranted  in  setting 
aside  or  seriously  modifying  such  sentence.  The  abolishment  of  the  deith 
penalty  coupled  with  a  growing  disposition  to  regard  lightly  the  binding  nature 
of  judicial  sentences,  instiUs  me  with  the  belief  that  a  more  sparing  use  of  the 
pardoning  power  will  have  a  salutary  effect  upon  the  criminal  element,  and 
is  demanded  in  justice  to  the  community  at  large.^ 

'  Reproduced  from  Fori  Wayne  Journal-Gazelle.        *  Literary  Digest,  XLIV,  1 1 16. 
3  Inaugural  Message  of  James  Withycombe  to  the  Twenty-eighth  Legislative  Assemily, 
191 5,  pp. lO-II. 


62      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

A  former  governor  of  Oklahoma  garrulously  expressed  his  fear  of  an 
abuse  of  the  pardoning  power  in  that  state  in  a  letter  which  was  read  at 
the  Conference  of  Governors  held  at  Colorado  Springs,  Colorado,  in 
1913,  explaining  his  non-attendance.     In  this  letter  he  said: 

The  lieutenant  governor  seems  determined  to  overthrow  all  of  my  policies 
and  to  make  wholesale  delivery  of  criminals  from  the  penitentiary.  The 
Criminal  Court  of  Appeals  in  this  state  has  joined  hands  with  the  lieutenant 
governor  in  this  raid  on  the  penal  institutions  by  holding  that  the  moment  I 
leave  the  state,  even  if  my  absence  extends  only  five  minutes,  the  lieutenant 
governor  can  do  as  he  pleases.  Under  these  conditions,  it  would  be  a  crime  for 
me  to  leave  Oklahoma.' 

A  feeling  prevails  in  some  circles  in  Utah  that  the  clemency  power 
is  too  freely  exercised.  The  recent  release  upon  parole,  after  a  very 
brief  confinement,  of  a  former  public  official  has  tended  to  strengthen 
this  view.  A  former  attorney-general,  who  was  secretary  of  the  Board 
of  Pardons,  freely  expressed  disgust  at  the  ease  with  which  clemency  was 
secured.  Likewise  the  lenient  policy  of  the  former  warden  of  the  state 
prison  was  under  iire  since  his  influence  with  the  Pardon  Board  was 
very  marked. 

A  very  diverse  and  marked  opinion  prevails  in  many  states  as  to 
whether  persons  of  political  power  and  influence  attempt  to  use  such 
power  and  influence  upon  pardon  officials  in  order  to  secure  clemency 
for  criminals.  In  such  states  as  California,  Connecticut,  Indiana,  Iowa, 
Maryland,  New  Hampshire,  North  Carolina,  North  Dakota,  Oklahoma, 
Oregon,  South  Carolina,  Utah,  and  Vermont  pardon  authorities  assert 
that  pohtics  has  no  place  in  the  administration  of  clemency,  and  that  no 
attempt  is  made  to  exert  poUtical  pressure  upon  the  officials  intrusted 
with  this  power.  Pardon  officials  in  a  few  states  imply  in  their  answers 
that  they  are  not  free  to  answer  this  question. 

In  Indiana  it  is  said  that  it  is  generally  understood  that  pohtical 
pressure  handicaps  an  applicant  for  clemency.  Political  pressure  is 
probably  attempted  in  Michigan,  judged  from  the  remarks  of  the 
secretary  of  the  Board,  who  says,  ''So  long  as  there  is  politics,  there 
will  be  politicians  who  believe  and  lead  others  to  believe  they  can  use 
their  influence  with  the  powers  that  be."  In  Virginia  it  is  believed  that 
the  governor  is  no  more  subject  to  such  influence  than  is  the  judge  who 
tried  the  case. 

In  Ohio  the  Board  of  Clemency  points  out  that  sometimes 

An  occasional  call  or  cheery  letter  from  a  prominent  man  is  taken  by  the 
prisoner  to  mean  political  interference.     Bad  results  flow  freely  and  quickly. 

'  Ex  parte  Crump,  10  Okla.  Cr.  133  (1913). 


ADMINISTRATION  OF  PARDON  AUTHORITIES  63 

Men  in  trouble  are  quick  to  boast  of  a  political  "pull,"  if  they  think  they 
have  it,  and  such  statements  spread  rapidly  among  the  2,000  prisoners.  If 
these  boasts  were  verified  by  quick  release,  incalculable  harm  would  be  done 
the  men  and  the  spirit  of  the  institution.  Where  such  boasts  are  made  it  is 
necessary  for  the  Board  to  hold  the  man  to  disprove  the  claim  of  "pull."' 

Authorities  in  x\]abama  say  that  political  pressure  is  sometimes 
attempted  and  may  have  been  effective  in  some  cases  in  the  past.  It  is 
also  admitted  that  in  rare  instances  it  has  been  tried  in  Nebraska, 
South  Dakota,  and  Wisconsin.  Politics  is  many  times  brought  to  bear, 
but  not  successfully,  it  is  said,  in  Illinois  and  Arkansas.  And  in  Texas 
in  certain  cases,  "almost  every  conceivable  form  of  pressure,  including 
political  pressure,  is  brought  to  bear  on  the  Governor  in  an  effort  to 
influence  the  action,"  says  his  secretary. 

At  times  it  may  be  difficult  to  determine  whether  an  attempt  is 
made  to  apply  political  pressure.  Sometimes  it  may  be  attempted  in 
such  an  insidious  and  elusive  manner  that  pardon  authorities  may  be 
unaware  of  any  sinister  motive  in  certain  attempts  to  secure  clemency. 
On  the  other  hand  wrong  motives  may  at  times  be  imputed  to  persons 
who  are  known  to  possess  political  power.  As  Governor  Harrington  of 
Maryland  well  said,  "It  is  impossible  to  prevent  persons  of  influence 
or  persons  holding  political  position,  where  they  know  the  parties,  not 
to  speak  to  the  Board  or  to  the  Governor  in  behalf  of  those  they  know." 
Such  persons  are  not  always  using  political  influence  but  show  only  a 
personal  interest  in  some  unfortunate  convict. 

At  any  rate  it  would  seem  that  public  officials  have  not  been  active 
in  using  their  official  position  for  the  purpose  of  exerting  influence  in 
this  respect.  In  no  state,  in  so  far  as  can  be  determined,  is  there  any 
statute  or  rule  which  prohibits  public  officials  from  applying  for  clem- 
ency or  interesting  themselves  in  behalf  of  a  criminal.  If  there  had 
been  any  serious  abuse  in  this  regard  it  is  reasonable  to  suppose  that 
legislation  would  have  been  enacted  which  would  have  prohibited  its 
exercise. 

A  careful  study  of  the  whole  problem  leads  one  to  feel  that  clemency 
has  at  times  been  granted  too  freely.  This  has  been  brought  about 
through  various  causes.  Lack  of  familiarity  with  the  facts  and  circum- 
stances of  the  case,  caprice,  undue  compassion  and  mercy,  social  and 
political  pressure,  practice  of  deceit  upon  pardon  officials,  have  all  been 
contributing  causes.  Although  one  cannot  entirely  agree  with  the  state- 
ment of  a  student  of  this  problem  that  "there  is  no  notable  case  of  a 

'  First  Annual  Report  of  Ohio  Board  of  Clemency  (191S),  pp.  13-14. 


64      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

corrupt  use  of  the  power  during  years,"'  yet  one  must  conclude  that 
pardon  authorities,  generally,  have  been  honest  and  conscientious  in 
their  administration  of  this  power.  Their  faults  and  mistakes  have 
been  due  primarily  to  an  insufficient  knowledge  of  each  case,  and  to  a 
lack  of  any  constant  standard  or  basis  of  judgment  in  arriving  at  their 
decisions.  It  is  not  so  much  the  character  of  the  men  but  rather  the 
method  of  procedure  which  is  at  fault.  The  remedying  of  this  latter 
condition,  it  is  believed,  will  lead  to  an  improvement  in  our  systems  of 
administering  clemency. 

'  W.  W.  Smithers,  "The  Use  of  the  Pardoning  Power,"  Annals  of  the  American 
Academy  of  Political  and  Social  Science,  LII,  6i. 


CHAPTER  V 

THE  PARDONING  POWER  IN  SOME  WESTERN  STATES:    CALI- 
FORNIA, OREGON,  NEVADA,  IDAHO,  UTAH, 
COLORADO,  WYOMING 

THE   PARDONING  POWER   IN   CALIFORNIA 

In  California  the  power  to  grant  reprieves  and  pardons  is  vested  by 
the  constitution  in  the  governor  subject  to  such  regulations  as  may  be 
provided  by  law  relative  to  the  manner  of  applying  for  pardons.'  By 
statute  an  Advisory  Pardon  Board  was  created  in  19 15  consisting  of  the 
lieutenant  governor,  who  is  chairman  of  the  Board,  the  attorney-general, 
and  the  wardens  of  the  state  prisons  at  San  Quentin  and  Folsom.^  The 
State  Board  of  Prison  Directors  acts  as  the  Parole  Board  of  the  state.^ 
This  board  consists  of  five  citizens  of  the  state.  Clemency  in  Ca'ifomia 
is  administered  by  the  governor  and  these  two  boards.  The  power  to 
parole  is  exclusively  in  the  hands  of  the  State  Board  of  Prison  Directors, 
The  power  to  pardon,  commute  sentences,  and  reprieve  is  exercised  by 
the  governor  and  the  Advisory  Pardon  Board.  This  last-named  Board 
maintains  offices  in  San  Francisco,  and  retains  a  permanent  secretary. 
Since  its  creation  the  present  attorney-general,  wardens,  and  secretary 
have  been  connected  with  it.  The  only  change  in  personnel  has  been 
the  lieutenant  governor.  Therefore  there  has  been  a  certain  degree  of 
permanency  of  policy  maintained. 

The  Board  does  not  act  upon  every  petition  made  for  clemency, 
but  only  upon  such  as  the  governor  chooses  to  refer  to  it.  The  statute 
creating  it  provides: 

Upon  request  of  the  governor  the  board  shall  investigate  and  report  upon 
all  appjications  for  reprieves,  pardons,  and  commutations  and  make  recom- 
mendations to  the  Governor.  The  board  shall  examine  all  applications, 
transcripts  of  judicial  proceedings,  affidavits,  and  has  power  to  take  testimony 
and  to  examine  witnesses  under  oath.'' 

Before  each  meeting  of  the  Pardon  Board  the  secretary  goes  over 
each  case  that  is  to  be  considered,  makes  a  brief  of  each  case,  and  mails 
a  copy  to  each  member  of  the  Board.     Then  when  the  Board  meets  he 

'  Constitution  of  California,  Art.  5,  sec.  13. 

'  Statutes  of  California,  19 15,  chap.  260,  sec.  i. 

3  Ibid.,  chap.  573.  *  Ibid.,  chap.  260,  sec.  3. 

65 


66     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

presents  more  detailed  evidence.  When  a  case  is  referred  to  the  Board 
the  records  in  the  governor's  office  are  examined,  together  with  any 
other  papers  that  may  be  submitted.  The  record  of  the  testimony  is 
gone  over,  the  prison  files  where  the  prisoner  is  incarcerated  are  examined, 
and  the  prisoner  is  interviewed.  The  case  is  thoroughly  gone  into  and 
if  the  members  of  the  Board  deem  it  necessary,  oral  testimony  is  taken. 
After  this  investigation  the  matter  is  considered  and  a  recommendation 
made  to  the  governor.  Since  the  Board  is  purely  an  advisory  one, 
he  is  free  to  accept  or  reject  its  recommendations. 

It  is  difficult  to  determine  what  proportions  of  applications  for 
clemency  are  referred  by  the  governor  to  the  Board  for  investigation. 
The  Board  has  no  record  or  information  concerning  this.  It  makes  no 
general  report — it  merely  reports  back  to  the  governor  its  recommenda- 
tions in  each  individual  case  that  is  referred  to  it.  No  records  are  kept 
of  the  apphcations  for  clemency  that  are  refused  by  the  governor. 
The  only  records  available,  therefore,  are  those  in  the  governor's  office 
containing  a  hst  of  pardons,  commutations,  and  reprieves  granted  by 
him,  and  the  reasons  therefor. 

A  personal  examination  of  these  records  during  the  first  four  and 
one-half  years  of  the  existence  of  the  Board  of  Pardons  shows  that  most 
of  the  clemency  granted  was  not  recommended  by  the  Board.  A 
segregated  list  according  to  biennial  periods  is  given  on  page  67. 

These  statistics  indicate  that  during  the  first  four  and  one-half 
years  of  its  existence  the  Advisory  Pardon  Board  recommended  19  per 
cent  of  the  total  number  of  pardons  granted,  21  per  cent  of  the  total 
number  of  commutations  granted,  and  made  no  recommendations 
regarding  the  granting  of  reprieves.  It  does  not  function  in  this  latter 
respect  at  all  because  questions  regarding  the  advisabiUty  of  granting 
reprieves  are  not  referred  to  it.  An  examination  of  the  clemency  records 
in  the  governor's  office  shows  that  in  no  case  where  clemency  was  granted 
was  there  an  unfavorable  recommendation  from  the  Pardon  Board. 

As  to  the  classes  of  cases  which  are  referred  to  the  Board  by  the 
governor,  Board  members  believe  that  probably  the  more  difficult 
cases,  at  least  the  more  controversial  ones,  are  so  referred.  Yet  it 
appears  that  the  famous  Thomas  J.  Mooney  case  was  handled  by  the 
governor  himself  without  any  reference  to  the  Board  of  Pardons. 

Since  the  governor  avails  himself  of  the  services  of  the  Board  to  a 
limited  extent,  the  question  that  naturally  arises  is.  Upon  whose  recom- 
mendation does  he  depend?  An  examination  of  the  pardon  records 
in  his  office  shows  that  those  cases  on  which  favorable  action  is  taken 


PARDONING  POWER  IN  SOME  WESTERN  STATES 


67 


BIENNTAL   PERIOD    1915-1916   INCLUSIVE 

Pardons  granted  by  Governor  Hiram  Johnson 
Pardons  recommended  by  Pardon  Board  . 

Commutations  granted  by  Governor  Johnson 
Commutations  recommended  by  Pardon  Board 

Reprieves  granted  by  Governor  Johnson   . 
Reprieves  recommended  by  Pardon  Board 


39 
5 

39 
10 

9 
2 


(These  two  reprieves  recommended,  although  listed  as 
reprieves,  were  really  commutations,  since  punishment  was 
commuted  from  death  to  life-imprisonment.) 

BIENNIAL   PERIOD    1917-1918   INCLUSIVE 

Pardons  granted  by  Governors  Johnson  and  Stephens    .  69 

T^.  -J  J       r  1,         fUnder  Governor  Johnson  ....     32 
Divided  as  follows  :{^^    ,^01 

launder  Governor  Stephens       ■      •      •     37 

Pardons  recommended  by  Pardon  Board 14 

T^.   .,  J       ,  „         f  Under  Governor  Johnson  ....       7 
Divided  as  follows :<_.^    ,      ^  r-      1 

[Under  Governor  Stephens       ...       7 

Commutations  granted  by  Governors  Johnson  and  Stephens    38 

9 
29 


T>,.   -J    ,       r  11         f Under  Governor  Johnson  . 
Divided  as  follows :<  ^,    .      ^  r.      , 

[Under  Governor  Stephens 

Commutations  recommended  by  Pardon  Board    . 

T-..   .J  J       -  ,,  [Under  Governor  Johnson  . 

Divided  as  follows .\\^    .      ^  Z,      , 

[Under  Governor  Stephens 


Reprieves  granted  by  Governors  Johnson  and  Stephens 

T^.  .,  J       c  II         f  Under  Governor  Johnson  . 
Divided  as  follows  :<^^    ,     ^  „      , 

[Under  Governor  Stephens 

Reprieves  recommended  by  Pardon  Board      .      .      .      . 


PERIOD  FROM  JANUARY  I,  1919,  TO  JULY  II,  1919 

Pardons  granted  by  Governor  Stephens 15 

Pardons  recommended  by  Pardon  Board 5 

Commutations  granted  by  Governor  Stephens  12 

Commutations  recommended  by  Pardon  Board   ....  2 

Reprieves  granted  by  Governor  Stephens 3 

Reprieves  recommended  by  Pardon  Board o 


68      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

usually  have  the  recommendation  of  persons  of  influence.  An  examina- 
tion of  hundreds  of  cases  covering  a  period  of  eight  and  one-half  years 
shows  that  recommendations  for  favorable  action  come  chiefly  from  the 
wardens  of  the  state  prisons,  trial  judges,  prosecuting  attorneys,  members 
of  the  State  Supreme  Court,'  the  State  Board  of  Prison  Directors, 
individual  members  of  this  Board,  the  State  Parole  Officer,  chiefs  of 
poUce,  sheriffs,  prison  physicians,  members  of  the  state  legislature, 
members  of  city  councils,  leading  private  citizens,  and  the  Advisory 
Board  of  Pardons.  Often  applications  for  clemency  are  indorsed  by 
several  of  these  combined  agencies. 

One  feels  after  a  study  of  the  situation  in  California  that  some 
improvement  might  be  made  in  the  granting  of  clemency  if  the  governor 
were  inclined  to  use  the  Pardon  Board  to  a  greater  extent  than  he  now 
does.  It  is  better  prepared  to  study  these  problems  than  he  is  personally. 
In  a  state  the  size  of  California  too  much  of  his  time  is  needed  in  other 
fields  of  activity.  Yet  this  criticism  is  not  meant  as  a  reflection  upon 
the  administration  of  clemency  in  that  state.  One  feels  that  there  is 
no  abuse  in  this  respect.  Considering  the  large  prison  population  one 
is  surprised  at  the  small  number  of  pardons  and  commutations  granted 
when  compared  with  the  number  granted  in  some  of  the  other  states. 
One  must  conclude  that  the  pardoning  authority  in  CaHfornia  pursues 
a  sensible,  conservative,  and  yet  progressive  pohcy.  Crime  and  Ufa 
are  not  held  lightly,  and  yet  incarceration  is  used  to  help  reform  a  prisoner 
and  to  assist  him  better  to  re-enter  society  when  he  again  emerges 
into  freedom. 

THE   PARDONING  POWDER   IN   OREGON 

In  Oregon  the  governor,  by  virtue  of  constitutional  power,  is  author- 
ized to  grant  reprieves,  commutations,  and  pardons  after  conviction, 
subject  to  such  regulations  as  may  be  prescribed  by  law.  He  is  to 
report  to  each  legislative  assembly  each  case  of  clemency  granted  with 
the  reasons  for  so  doing. ^  By  legislative  enactment,  as  amended  in 
1915,  a  Parole  Board  has  been  established,  consisting  of  the  superin- 
tendent of  the  state  prison,  the  governor's  secretary,  the  state  parole 
officer,  and  two  other  members   appointed    by    the   governor.^     The 

'  "Neither  the  Governor  nor  the  Legislature  shall  have  power  to  grant  pardons 
or  commutations  of  sentence,  in  any  case  where  the  convict  has  been  twice  convicted 
of  a  felony,  unless  upon  the  written  recommendation  of  a  majority  of  the  Judges  of 
the  Supreme  Court." — Constitution  of  California,  Art.  7,  sec.  i. 

^  Constitution  of  Oregon,  Art.  5,  sec.  14. 

^  General  Laws  of  Oregon,  1915,  chap.  176,  sec.  i. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  69 

Parole  Board  acts  as  an  Advisory  Pardon  Board  to  the  governor  and 
deals  with  such  cases  only  as  he  refers  to  it.  In  this  respect  it  is  similar 
to  the  Advisory  Pardon  Board  in  CaUfornia. 

In  Oregon  it  is  common  to  use  three  forms  of  clemency:  (a)  parole, 
{b)  pardon,  (c)  restoration  to  citizenship.  A  person  on  parole  is  under 
the  direction  and  control  of  the  state  parole  officer  until  the  expiration 
of  the  maximum  term  of  sentence.  Such  person  is  not  in  possession  of 
full  legal  rights  and  privileges,  and  must  abstain  absolutely  from  the 
use  of  intoxicating  hquors,  must  avoid  evil  associations,  must  not 
frequent  improper  places  of  amusement,  and  must  respect  and  obey  the 
laws  and  in  all  ways  conduct  himself  as  a  good  citizen.  The  governor 
may  at  any  time  revoke  a  parole,  with  or  without  notice,  and  cause  the 
paroled  person  to  be  returned  to  the  penitentiary. 

The  so-called  pardon  issued  in  Oregon  is  in  reality  a  conditional 
pardon.  It  is  issued  by  the  governor  and  restores  to  the  person  receiving 
it  all  the  rights  and  privileges  heretofore  enjoyed  by  him  under  the  laws 
of  the  state.  It  is  issued  upon  the  agreement  that  the  recipient  is  to  be 
and  remain  a  law-abiding  citizen,  and  in  case  he  violates  any  of  the  laws 
of  the  United  States,  or  of  Oregon,  or  of  any  municipaUty  in  which  he 
lives,  or  any  of  the  foregoing  conditions,  the  governor,  whenever  he 
is  satisfied  by  such  investigation  as  he  may  see  fit  to  make  that 
the  agreement  has  been  violated,  may  revoke  the  pardon  without 
notice  and  without  the  intervention  of  any  court,  and  may  direct  any 
peace  oflficer  to  arrest  the  recipient  of  the  pardon  and  return  him  to 
prison. 

The  "restoration  to  citizenship"  is  usually  granted  by  the  governor 
to  a  person  who  has  satisfactorily  met  his  conditions  of  parole,  and 
grants  unto  him  a  full  pardon,  restoring  to  him  all  the  rights  and  privi- 
leges heretofore  enjoyed  by  him  under  the  laws  of  the  state. 

Since  the  Parole  Board  in  Oregon  is  an  Advisory  Pardon  Board  to 
which  the  governor  may  refer  for  advice  such  clemency  cases  as  he 
desires,  a  situation  exists  similar  to  that  which  prevails  in  California. 
The  question  therefore  naturally  arises  again  as  to  the  extent  to  which 
the  governor  relies  upon  this  Board  for  advice  and  assistance.  To 
determine  an  answer  to  this  question  a  personal  study  was  made  of 
volumes  V,  VI,  and  VII  of  Pardons,  Remissions,  and  Commutations  of 
the  State  of  Oregon  for  the  period  from  February  2,  1911,  to  July  15,  1919. 
This  involved  a  study  of  1,257  cases  while  Governors  West,  Withy  combe, 
and  Olcott  were  the  governors  of  Oregon.  The  results  of  this  study 
mav  be  summarized  as  follows. 


70      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Governor  West  granted  clemency  in  532  cases  from  February  2, 
191 1,  to  January  11,  191 5.  Of  these  cases  the  Board  of  Parole  recom- 
mended that  clemency  be  granted  as  follows:  Pardons  96,  commutations 
2,  restoration  to  citizenship  o;   total  98. 

Governor  Withycombe  granted  clemency  in  620  cases  from  February 
II,  191 5,  to  February  10,  1919.  Of  this  number  the  Board  of  Parole 
recommended  clemency  as  follows:  pardons  118,  commutations  o, 
restoration  to  citizenship  195;   total  313. 

Governor  Olcott  granted  clemency  in  105  cases  from  March  15,  1919, 
to  July  15,  191 9.  Of  this  number  the  Board  of  Parole  recommended 
clemency  as  follows:  pardons  9,  commutations  o,  restoration  to  citizen- 
ship 73;  total  82. 

In  a  total  of  1,257  cases  of  clemency  granted  during  this  entire 
period  the  Board  of  Parole  recommended  clemency  in  493  cases. 

During  Governor  West's  administration  the  Parole  Board  recom- 
mended clemency  in  18  per  cent  of  the  cases  in  which  it  was  granted. 
During  Governor  Withycombe's  term  of  office  the  Parole  Board  recom- 
mended clemency  in  50  per  cent  of  the  cases  in  which  it  was  granted. 
During  the  first  half-year  of  Governor  Olcott's  term  the  Parole  Board 
recommended  clemency  in  78  per  cent  of  the  cases  in  which  it  was  granted. 
These  statistics  are  significant.  They  show  that  under  Governor 
West's  administration  the  Parole  Board  did  not  pass  upon  the  question 
of  restoration  of  citizenship,  whereas  the  Board  made  many  recom- 
mendations to  this  effect  during  the  administrations  of  Governors 
Withycombe  and  Olcott.  These  statistics  also  show  a  much  greater 
inclination  on  the  part  of  the  last  two  governors,  especially  Governor 
Olcott,  to  avail  themselves  of  the  service  of  the  Parole  Board  than  did 
Governor  West. 

In  addition  to  the  recommendations  of  the  Parole  Board  the  records 
disclose  that  recommendations  for  clemency  come  to  the  governor  from 
trial  judges,  district  attorneys,  prison  physicians,  members  of  juries, 
witnesses  in  cases,  employers,  chiefs  of  police,  and  even  the  Norwegian 
consul,  and  the  state  game  warden. 

The  impression  one  gathers  from  a  study  of  the  records  is  that 
clemency  has  been  freely  extended  in  Oregon,  sometimes  for  light  and 
even  trifling  reasons.  Under  Governor  West's  administration  the  state 
of  Oregon  became  rather  notorious  for  the  leniency  shown  to  criminals. 
Governor  Withycombe,  who  followed,  intended  to  be  strict  as  shown  in 
his  first  message  to  the  legislature,  but  he  soon  drifted  into  the  same 
policy  pursued  by  his  predecessor.     Governor  Olcott  also  began  his 


PARDONING  POWER  IN  SOME  WESTERN  STATES  71 

administration  by  showing  much  leniency  during  his  first  four  months 
in  office.  Considering  its  prison  population  Oregon  seems  to  be  much 
more  lenient  than  California  in  the  granting  of  clemency. 

THE  PARDONING  POWER  IN  NEVADA 

The  constitution  of  Nevada  vests  the  clemency  power  in  a  Board  of 
Pardons  and  Parole  Commissioners  consisting  of  the  governor,  the 
members  of  the  state  Supreme  Court  (three  in  number),  and  the  attorney- 
general.  The  Board,  or  a  major  part  of  them,  of  whom  the  governor 
must  be  one,  may  grant  clemency  subject  to  such  regulations  as  the 
legislature  may  provide  relative  to  the  manner  of  applying  for  pardons. 
The  governor  is  required  to  communicate  to  the  legislature  at  each 
session  each  case  of  clemency  granted,  but  he  is  not  required  and  does 
not  give  the  reasons  for  having  granted  clemency.  The  Board  sits  in 
two  separate  capacities — in  one  as  a  Pardon  Board  and  in  the  other  as 
a  Board  of  Parole  Commissioners. 

The  secretary  of  the  Board  is  also  the  governor's  private  secretary. 
In  view  of  the  fact  that  much  of  his  time  is  given  to  other  activities, 
the  records  of  the  Board  are  in  good  shape.  The  official  pardon  records 
consist  of  (a)  Memoranda  of  Applicants  for  Clemency,  (6)  Register  of 
Prisoners  Received  in  the  Nevada  State  Prison  since  December  20,  1866, 
(c)  Minutes  of  State  Board  of  Pardons  and  Parole  Commissioners,  {d) 
Filing  Jacket  containing  materials  relating  to  clemency. 

The  Memoranda  of  Applicants  for  Clemency  contains  information 
in  the  nature  of  data  relating  to  each  prisoner  who  has  applied  for 
clemency.  In  addition  to  this  data  there  appear  remarks  (always  very 
brief)  such  as  the  name  of  the  petitioner's  attorney,  whether  application 
was  granted  or  denied,  conditions,  if  any,  under  which  an  application 
was  granted,  the  affirmative  or  negative  vote  of  each  individual  member 
of  the  Board. 

The  Register  of  Prisoners  Received  in  the  Nevada  State  Prison  is 
devoted  chiefly  to  data  descriptive  of  the  prisoner.  The  total  number 
of  such  .prisoners  in  Nevada  from  December  20,  1866,  to  June  20, 1919, 
was  2,152. 

The  Minutes  of  the  State  Board  of  Pardons  describe  the  business 
transacted  by  the  Board.  No  stenographic  reports  of  the  hearings  are 
kept.  The  minutes  merely  show  the  date  of  the  meeting,  whether  it 
was  a  morning  or  afternoon  session,  which  members  of  the  Board  were 
present,  the  cases  heard,  who  appeared  in  behalf  of  the  prisoner.  (The 
arguments  of  such  persons  either  are  not  given  or  else  in  very  incomplete 


72      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

form.)  The  Board  then  usually  goes  into  executive  session.  The  discus- 
sion while  in  executive  session  is  not  given.  The  names  of  the  members 
moving  that  clemency  be  granted  or  be  not  granted  and  of  the  members 
seconding  such  motions  are  given.  The  vote  of  each  member  of  the 
Board  is  recorded.  The  Board  then  returns  into  open  session  where 
announcement  is  made  of  the  action  taken  in  executive  session.  The 
conditions  under  which  pardons  or  paroles  are  granted  are  stated  in 
the  minutes.  The  minutes  contain  the  name  of  the  applicant  for 
clemency  but  do  not  state  the  crime.  The  minutes  on  file  in  the  office 
of  the  Secretary  of  the  Board  of  Pardons  date  back  only  to  January  4, 
191 1.     The  secretary  has  been  unable  to  find  those  earlier  than  this  date. 

The  "Filing  Jacket"  contains  such  information  and  material  as: 
{a)  Applications  for  clemency  filed  on  printed  forms.  (6) Permissions 
granted  by  the  Board  of  Pardons  to  petitioner  to  make  application. 
(c)  Notice  of  intention  to  apply  for  clemency,  {d)  Acknowledgement  of 
notice  received  by  the  district  attorney  and  district  judge  that  they 
had  been  notified  of  the  intention  of  the  applicant  to  ask  for  a  hearing. 
(The  Pardon  Board  now  notifies  the  district  judge  and  the  district 
attorney.  Formerly  the  applicant  did  this.)  (e)  Summary  of  the  trial 
submitted  by  the  district  attorney  as  required  by  law.  (Sometimes  it 
is  difficult  to  get  the  district  attorney  to  do  this.)  (/)  Recommendations 
of  other  persons,  promises  to  furnish  employment  for  the  prisoner  if 
released,  etc. 

The  Rules  of  the  Board  of  Pardons  provide  that  when  the  Board 
votes  upon  any  appUcation  for  clemency  the  roll  of  members  shall  be 
called  by  the  clerk  in  the  following  order:  first,  the  attorney-general; 
second,  the  junior  associate  justice  of  the  Supreme  Court;  third,  the 
senior  associate  justice  of  the  Supreme  Court;  fourth,  the  chief  justice 
of  the  Supreme  Court;  fifth,  the  governor.' 

This  rule  does  not  seem  to  work  well.  The  way  in  which  each 
member  votes  on  each  case  becomes  public  with  the  result  that  he  is 
subjected  to  public  criticism.  Therefore,  it  is  said  on  incontrovertible 
evidence,  the  members  of  the  Board  sometimes  vote  so  as  to  curry 
popular  favor  rather  than  to  be  consistent.  In  one  county  in  the  state 
to  release  a  horse  thief  or  cattle  thief  would  provoke  more  antagonism 
than  would  the  release  of  a  murderer.  Therefore  it  is  asserted  that 
members  are  careful  in  their  voting,  especially  preceding  an  election  in 
which  they  are  candidates  for  re-election.  Popular  approval  of  their 
action  on  clemency  matters  is  a  poHtical  asset.     The  present  method  is 

'  Rules  of  Nevada  Board  of  Pardons.     Rule  8. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  73 

condemned  by  the  governor,  who  feels  that  secrecy  in  voting  would 
encourage  freedom  of  action  to  a  greater  degree  than  is  possible  under 
the  present  system.  For  the  same  reason  he  favors  an  appointive 
Board  instead  of  one  composed  of  elective  officials.  Such  a  Board,  he 
feels,  would  be  less  inclined  to  cater  to  popular  feeling. 

It  is  said  that  the  Supreme  Court  judges  and  the  attorney-general 
when  first  elected  are  averse  to  showing  leniency  but  that  in  the  course 
of  time  they  become  more  mellow.  These  officials  have  often  been  trial 
judges  or  prosecuting  attorneys  previously  and  approach  a  question  of 
granting  clemency  from  their  earlier  point  of  view.  On  the  other  hand 
the  governor  believes  that  prisoners  are  often  impelled  to  plead  guilty 
through  persuasion,  threats,  coercion,  or  "third  degree"  methods,  and 
then  when  they  apply  for  parole  or  pardon  their  former  plea  of  guilty 
is  used  against  them.  Therefore  the  governor  is  inclined  to  favor 
leniency  because  he  says  that  a  prisoner  should  be  released  before  he 
loses  his  self-respect,  otherwise  his  reformation  is  impossible  and  he 
will  come  out  of  prison  at  the  end  of  his  term  a  hardened  criminal. 

Considering  that  most  of  the  convicts  in  the  Nevada  penitentiary 
are  not  citizens  of  the  state  but  transients,  chiefly  Mexicans,  Greeks, 
and  a  few  Japanese  and  Chinese,  an  impartial  investigator  is  inclined  to 
the  view  that  leniency  is  too  freely  granted  in  Nevada.  Since  both  the 
state  population  and  the  prison  population  are  small  the  cases  of 
clemency  granted  are  rather  large  in  comparison  with  some  other  states. 

During  the  years  19 13-14  clemency  was  granted  as  follows:  pardons 
12,  paroles  112,  commutations  2,  restoration  to  citizenship  3,  remission 
of  fines  i.^  In  19 15  and  19 16  there  were  granted:  pardons  12,  paroles 
179,  commutations  2,  restoration  to  citizenship  10,  remission  of  fines  2, 
paroles  to  Nevada  School  of  Industry  4.^  During  the  years  1917-18 
clemency  was  granted  as  follows:  pardons  2,2)^  paroles  181,  commutations 
II,  restoration  to  citizenship  11,  paroles  to  Nevada  School  of  Industry  5.^ 

This  apparent  looseness  is  due  in  part  to  insufficient  time  being  given 
to  the  matter  of  clemency.  The  Pardon  Board  meets  but  semi-annually. 
This  means  that  only  eight  regular  meetings  are  held  during  an  entire 
term  of  the  governor  and  attorney-general.  It  is  said  that  there  is  a 
tendency  to  hurry  through  the  consideration  of  appUcations  unless  the 
governor  is  present  who  insists  on  more  thoroughness  in  going  into  the 
merits  of  the  cases  than  do  the  other  members  of  the  Board. 

'  Message  of  Governor  Boyle  to  Legislature  of  1915,  pp.  33-35. 
'  Message  of  Governor  Boyle  to  Legislature  of  1917,  pp.  42-46. 
3  Message  of  Governor  Boyle  to  Legislature  of  1919,  pp.  37-41. 


74      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

THE   PARDONING   POWER   IN   IDAHO 

A  Board  of  Pardons  is  established  in  Idaho  by  constitutional  provi- 
sion, consisting  of  the  governor,  secretary  of  state,  and  the  attorney- 
general.  This  Board,  or  a  majority  thereof,  is  empowered  to  grant 
clemency.  It  is  not  an  advisory  board  such  as  those  in  California, 
Oregon,  Colorado,  or  Wyoming,  but  possesses  full  and  final  power  in 
clemency  matters.  The  governor  is  merely  a  member,  and  a  majority 
(regardless  of  whether  the  governor  helps  to  constitute  that  majority) 
determines  the  action  of  the  Board.  The  Board  may  grant  pardons, 
reprieves,  commutations,  and  paroles.  But  an  Act  of  1909'  as  amended 
in  1911^  constitutes  the  governor,  secretary  of  state,  and  the  attorney- 
general  a  State  Board  of  Prison  Commissioners  which  may  establish 
rules  under  which  prisoners  may  be  allowed  to  go  on  parole  under  certain 
conditions.  In  Idaho  there  are  therefore  two  clemency  boards  composed 
of  the  same  membership.  Both  boards  meet  quarterly,  and  within  one 
month  of  each  other. 

The  prison  population  is  small,  approximately  two  hundred  or 
slightly  more,  and  the  administration  of  clemency  is  carried  on  with 
some  degree  of  laxness.  The  records  are  in  poor  shape,  which  makes  it 
difficult  to  learn  much  regarding  past  practices.  All  records  are  con- 
tained in  one  volume  entitled  "Record  Board  of  Pardons  (A)  Idaho." 
They  are  written  in  long  hand  from  April  i,  1891  (the  first  session  of  the 
Board),  to  December  24,  1910.  Since  then  they  are  in  typewritten  form. 
They  contain  the  minutes  of  the  Board  as  well  as  the  list  of  pardons  and 
other  forms  of  clemency  which  have  been  granted.  In  many  instances 
the  crime  for  which  clemency  has  been  granted  is  not  stated.  The 
minutes  of  the  Board  of  Pardons,  and  of  the  Board  of  Parole  since  its 
creation,  are  recorded  indiscriminately  in  the  same  volume,  the  same 
page  sometimes  being  given  over  to  the  minutes  of  the  two  Boards. 
The  records  since  191 1  are  less  complete  in  showing  the  reasons  for  the 
action  which  was  taken  in  each  case.  In  a  few  instances  the  reasons 
are  given  in  great  detail,  but  in  the  great  majority  of  cases  the  reasons 
for  the  action  are  very  briefly  stated  or  not  at  all.  The  constitution 
requires  that  the  reasons  for  granting  clemency  shall  be  reduced  to 
writing  and  filed  in  the  office  of  the  secretary  of  state,  who  is  also  secretary 
of  the  Board.  It  is  evident  that  this  provision  of  the  constitution  is 
not  fully  complied  with.  In  fact  the  secretary  of  the  Board  was  not 
fully  informed  of  this  requirement  until  his  attention  was  called  to  it. 

'  Idaho  Session  Laws  (1909),  p.  82,  sec.  2. 
^  Ibid.  (1911),  p.  216,  sec.  i. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  75 

Beginning  with  1915  an  attempt  has  been  made  in  the  "Record" 
to  classify  the  action  of  the  Board  under  such  headings  as:  pardons 
granted,  paroles  granted,  applications  denied,  etc.,  but  this  classification 
is  not  followed  consistently. 

Before  an  application  comes  before  either  the  Pardon  Board  or  the 
Parole  Board  each  member  is  furnished  with  a  summary  or  brief  of  the 
vital  facts  of  the  case.  One  day  the  Pardon  Board  listens  to  testimony 
submitted  in  behalf  of  or  against  applicants,  then  the  next  day  it  visits 
the  state  prison  and  interviews  the  applicants.  A  practice  has  developed 
of  releasing  some  deserving  prisoners  at  Christmas  time. 

Some  interesting  things  are  encountered  in  working  through  the 
"Record."  In  one  case  in  1891,  involving  life-imprisonment  for  murder 
and  in  which  the  applicant  petitioned  for  a  pardon,  three  days  were 
spent  by  the  Board  in  reading  the  transcript  of  the  trial  and  two  days  in 
listening  to  counsel  for  and  against  petitioner.  In  another  case  heard 
in  1 89 1,  where  the  appUcant  was  sentenced  for  assault  with  intent  to 
commit  murder,  a  petition  for  pardon  was  presented  signed  by  hundreds 
of  citizens,  all  the  county  officers,  the  members  of  the  trial  and  grand 
juries,  and  the  members  of  the  legislature  from  the  county  in  which  the 
prisoner  lived.  One  petition  for  clemency  was  rejected  in  1891  although 
it  was  recommended  by  James  H.  Hawley  (later  governor  of  Idaho) 
and  Senator  Shoup.  Another  petition  for  pardon  recommended  by 
over  two  hundred  citizens,  thirty-five  members  of  the  General  Assembly, 
the  district  attorney,  the  trial  judge,  and  Senator  Shoup  was  granted  on 
condition  the  prisoner  leave  the  state  and  never  return.  On  July  i, 
1908,  the  death  sentence  of  Harry  Orchard  (the  murderer  of  Governor 
Steunenberg)  was  commuted  to  life-imprisonment  by  a  vote  of  the  Board 
by  a  majority  of  two  members  to  one.  Such  cases  as  these  arouse 
interest  but  ordinarily  the  pul)lic  has  no  interest  in  the  actions  of  the 
Pardon  Board.  There  seems  to  be  no  abuse  in  the  exercise  of  clemency 
in  Idaho,  but  the  manner  of  keeping  records  should  be  systematized, 
and  more  care  and  accuracy  given  to  the  subject. 

THE  PARDONING  POWER  IN  UTAH 

The  constitution  of  Utah  creates  a  Board  of  Pardons  consisting  of 
the  governor,  the  justices  of  the  Supreme  Court,  and  the  attorney- 
general.  A  majority  of  this  Board,  including  the  governor,  may  grant 
clemency  subject  to  such  regulations  as  may  be  provided  by  law  relative 
to  the  manner  of  applying  for  pardons.  The  proceedings  and  decisions 
of  the  Board,  with  the  reasons  therefor  in  each  case,  are  to  be  reduced  to 


76      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

writing  and  filed  in  the  office  of  the  secretary  of  state.  The  governor 
is  required  by  the  constitution  to  communicate  to  the  legislature  at 
each  regular  session  a  record  of  each  case  of  clemency  granted  since 
the  last  previous  report,  with  the  reasons  for  granting  the  same. 

The  constitutional  provision  that  a  majority  of  the  Board,  including 
the  governor,  may  grant  clemency  has  come  in  for  a  httle  criticism. 
It  is  felt  by  some  that  there  is  no  valid  or  logical  reason  why  clemency 
should  be  refused,  if  a  majority  of  the  Board  is  favorable  to  granting  it, 
merely  because  the  governor  is  opposed  to  granting  the  same.  The 
oldest  member  in  point  of  service  on  the  Pardon  Board  says  that  some 
members  of  the  Board  who  are  justices  of  the  Supreme  Court  recognize 
the  validity  of  this  objection,  although  these  same  justices  when  members 
of  the  State  Constitutional  Convention  in  1895  approved  of  the  present 
arrangement. 

The  provision  of  the  constitution  that  the  governor  shall  com- 
municate to  the  legislature  at  each  regular  session  each  case  of  clemency 
granted  since  the  last  previous  report  with  the  reasons  for  granting  the 
same  is  a  dead  letter.  Governors  do  not  comply  with  this  constitutional 
requirement.  This  statement  is  substantiated  by  a  former  governor, 
secretary  of  state,  attorney-general,  and  justices  of  the  Supreme  Court. 
When  the  attorney-general  was  asked  point  blank  if  the  governor  could 
determine  for  himself  whether  he  obeyed  the  constitution  or  not,  he 
replied  that  there  was  no  efifective  way  of  compelHng  the  governor  to 
comply  with  this  constitutional  requirement. 

The  records  of  the  Pardon  Board  are  divided — some  being  filed  in 
the  office  of  the  secretary  of  state  and  some  in  the  office  of  the  attorney- 
general.  This  comes  about  from  the  fact  that  the  attorney-general  is 
the  secretary  of  the  Board,  but  the  constitution  provides  that  the 
proceedings  and  decisions  of  the  Board,  with  the  reasons  therefor  in 
each  case,  are  to  be  reduced  to  writing  and  filed  in  the  office  of  the 
secretary  of  state.  This  results  in  some  confusion  and  unnecessary 
complication  and  should  be  remedied.  There  is  no  good  reason  why  all 
the  records  should  not  be  kept  in  one  office. 

The  records  in  the  office  of  the  attorney-general  consist  of  a  "Register 
of  Board  of  Pardons,"  also  called  "Record  of  Board  of  Pardons,  State 
of  Utah,  No.  I."  This  volume  contains  entries  from  1896  to  1918,  but 
the  entries  for  the  later  years  are  not  complete.  The  earUer  entries  are 
in  longhand.  The  information  contained  herein  gives  the  sentence  of 
each  convict,  the  names  of  the  trial  judge  and  prosecuting  attorney, 
the  application  of  each  convict  asking  clemency,  and  the  action  taken 


PARDONING  POWER  IN  SOME  WESTERN  STATES  77 

by  the  Board  of  Pardons  on  such  applications.  The  reasons  for  the 
action  of  the  Board  are  not  given.  Some  decisions  are  reached  in  open 
session,  and  some  in  executive  session.  From  1896  to  about  1905  the 
vote  of  the  individual  members  of  the  Board  is  given  in  each  case,  but 
this  is  not  done  since  the  last-named  date.  In  more  recent  years  all 
of  this  material  is  kept  on  a  card  file  which  is  indexed.  But  some  of  the 
information  on  the  card  file  is  also  contained  in  this  volume.  Con- 
sequently there  is  duplication  to  some  extent.  But  the  whole  of  the 
material  in  the  volume  has  not  been  transferred  to  the  card  index  and 
there  is  no  way  of  determin'ng  which  information  has  been  transferred 
and  which  has  not. 

A  second  volume  in  the  attorney-general's  office  contains  brief 
minutes  of  the  meetings  of  the  Board  of  Pardons,  beginning  with  the 
meeting  of  June  20,  1914,  and  coming  up  to  date.  Sometimes  a  very 
brief  statement  of  the  reasons  for  the  action  of  the  Board  in  each  case 
is  given,  but  this  plan  is  not  consistently  followed.  The  reasons  given 
in  this  volume  are  identical  for  each  case  with  the  reasons  found  in  the 
regular  minutes  of  the  Board  which  are  on  file  in  the  office  of  the  secretary 
of  state.  Very  brief  reasons  are  given  for  the  granting  of  pardons  and 
commutations.  No  reasons  are  given  for  the  granting  of  paroles  and 
termination  of  sentence. 

The  records  in  the  office  of  the  secretary  of  state  consist  of  "State 
of  Utah.  Pardons.  Volume  A."  This  volume  contains  a  record  of 
pardons  granted  since  February  15,  1896.  This  record  is  in  the  form  of 
a  dupHcate  of  each  pardon  issued,  with  the  signature  of  the  governor 
and  the  secretary  of  state  attached.  The  reasons  for  granting  pardons 
are  not  given  but  a  statement  occurs  that  the  reasons  for  doing  so  have 
been  filed  in  the  office  of  the  secretary  of  state.  The  reasons  for 
favorable  action  by  the  Board  of  Pardons  are  contained  in  the  Minutes 
of  the  Board  and  are  on  file  in  this  office.  These  minutes  are  not 
in  book  form  but  are  filed  away  on  loose  sheets  of  paper  in  type- 
written form.  The  minutes  of  each  meeting  cover  from  one  to  six  pages, 
depending  on  the  amount  of  business  transacted  by  the  Board  at  each 
session. 

The  reasons  of  the  Board  in  each  case  are  usually  contained  in  one 
short  paragraph.  In  some  cases  each  reason  given  is  contained  in  one 
sentence.  In  exceptional  or  notorious  cases  the  reason  is  set  forth  at 
greater  length.  When  opposition  to  granting  clemency  develops  it  is 
usually  from  members  of  the  Supreme  Court  or  the  attorney-general — 
not  from  the  governor. 


78      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

A  detailed  analysis  of  the  action  of  the  Pardon  Board  in  granting 
clemency  since  statehood  shows  the  following: 

1896 

Pardons  and  commutations  granted 26 

Pardons  and  commutations  denied 32 

1897 

Pardons  and  commutations  granted 17 

Pardons  and  commutations  denied 23 

1898 

Pardons  and  commutations  granted 18 

Pardons  and  commutations  denied 39 


Pardons  and  commutations  granted 
Pardons  and  commutations  denied 

1900 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1901 

Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1902 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1903 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1904 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1905 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1906 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1907 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1908 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 

1909 
Pardons,  commutations,  and  paroles 
Pardons,  commutations,  and  paroles 


granted 
denied 

granted 
denied    , 

granted 
denied    , 

granted 
denied 

granted 
denied 

granted 
denied 

granted 
denied 

granted 
denied 

granted 
denied 

granted 
denied    , 


19 

31 

33 
38 

13 

31 

37 
33 

29 


33 
42 

30 
36 

22 
61 

35 
73 

38 
73 

61 

83 


PARDONING  POWER  IN  SOME  WESTERN  STATES  79 

ACTION   OF   BOARD   OF   PARDONS,    IQIO 

Pardons:  granted  12;  denied  58. 
Commutations:  granted  6;  denied  18. 
Paroles:  granted  4;  denied  4. 
Ordered  released  15. 

ACTION   OF   BOARD   OF   PARDONS,    IQII 

Pardons:  granted  33;  denied  37. 
Commutations:  granted  3;  denied  10. 
Paroles:  granted  5;  denied  9. 
Restoration  of  credits :  granted  i ;  denied  i . 

ACTION   OF   BOARD   OF   PARDONS,    I912 

Pardons:  granted  29;  denied  45. 

Commutations:  granted  7;  denied  23. 

Paroles:  granted  9;  denied  6. 

Ordered  released:  none. 

Restoration  of  credits:  granted  o;  denied  i. 

Fines  remitted:  granted  2;  denied  o. 

ACTION   OF   BOARD    OF   PARDONS,    1913 

Pardons:  granted  26;  denied  46. 
Commutations:  granted  4;  denied  17. 
Paroles:  granted  16;  denied  21. 

ACTION  OF   BOARD   OF  PARDONS,    1914 

Pardons:  granted  30;  denied  105. 
Commutations:  granted  45;  denied  27. 
Paroles:  granted  30;  denied  27. 
Ordered  released  i. 
Restoration  of  credits:  denied  i. 

(Accuracy  of  statistics  for  this  year  cannot  be  absolutely 
determined  because  of  irregularity  in  records.) 

ACTION   OF  BOARD   OF  PARDONS,    1915 

Pardons:  granted  27;  denied  106. 
Commutations:  granted  24;  denied  58. 
Paroles:  granted  33;  denied  33. 
Termination  of  sentence:  granted  64;  denied  72. 
Restoration  of  credits:  granted  4;  denied  i. 

ACTION    OF   BOARD   OF   PARDONS,    1916 

Pardons:  granted  4;  denied  151. 

Commutations:  granted  32;  denied  46. 

Paroles:  granted  2)i\  denied  28. 

Credits:  restored:  granted  i;  denied  i.     Reprieves  granted  5. 

Termination  of  sentence:  granted  129;  denied  91. 


8o      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

ACTION    OF   BOARD    OF   PARDONS,    1917 

Pardons:  granted  i8;  denied  go. 
Commutations:  granted  46;  denied  39. 
Paroles:  granted  44;  denied  37. 
Restoration  of  credits:  granted  2;  denied  o. 
Sentence  terminated:  granted  145;  denied  no. 
(Many  applications  for  rehearing  are  denied.) 

ACTION   OF   BOARD   OF  PARDONS,    1918 

Pardons:  granted  ii;  denied  58. 
Commutations:  granted  13;  denied  20. 
Paroles:  granted  44;  denied  62. 
Termination  of  sentence:  granted  97;  denied  61. 
Restoration  of  credits:  granted  i;  denied  o. 

(Many  applications  for  rehearing  are  denied.  The  Board 
refuses  many  applications  for  pardons  but  often  grants  a  com- 
mutation of  sentence  to  end  immediately,  or  a  termination  of  sen- 
tence to  end  at  once  in  the  place  of  the  pardon  requested.) 

ACTION  OF  BOARD  OF  PARDONS,  JANUARY  I,  1919,  TO 
MAY  17,  1919 

Pardons:  granted  4;  denied  8. 

Commutations:  granted  6;  denied  6. 

Paroles:  granted  13;  denied  16. 

Termination  of  sentence:  granted  34;  denied  26. 

During  the  last  four  years  the  Pardon  Board  has  been  "under  fire" 
for  its  lenient  pohcy.  This  poUcy  reflected  particularly  the  views  of 
the  warden  of  the  state  prison  who,  it  was  generally  admitted,  had 
considerable  influence  with  the  Board  of  Pardons.  This  criticism  was 
reflected  in  the  fact  that  the  population  of  the  state  prison  during  the 
first  part  of  January,  1917,  was  288  convicts,  whereas  on  August  16, 
1919,  it  was  99  convicts.  Because  of  this  criticism  the  warden  felt 
impelled  to  submit  a  report  on  November  10,  1917,  to  the  Pardon  Board 
for  its  own  information,  and  "with  a  view  of  offsetting  the  contention 
in  certain  quarters  that  society  has  been  greatly  menaced  on  account  of 
the  release  of  prisoners  by  the  State  Board  of  Pardons."  The  report 
covers  the  period  from  April  i,  1917,  to  November  i,  1917,  and  shows 
that  clemency  was  extended  as  follows:  pardons  9,  commutations  11, 
paroles  25,  termination  of  sentence  48;  total  93.  The  warden  states 
that  he  has  positive  knowledge  of  all  but  17  out  of  these  93  men  who 
have  been  released.  Of  that  number  only  7  were  known  to  have  gone 
wrong,  leaving  a  percentage  of  91  per  cent  who  were  making  good. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  8i 

A  new  state  administration  has  come  into  power  and  a  new  warden 
of  the  state  prison  has  recently  been  appointed,  but  it  is  too  early  to 
determine  what  effect,  if  any,  this  change  will  have  on  the  policy  of  the 
State  Board  of  Pardons. 

THE   P.4RDONING   POWER   IN   COLORADO 

The  constitution  of  Colorado  provides  that  the  governor  shall  have 
the  power  to  grant  reprieves,  commutations,  and  pardons  subject  to 
such  regulations  as  may  be  prescribed  by  law  relative  to  the  manner  of 
applying  for  pardons.  By  statute  a  State  Board  of  Pardons  and  a 
State  Board  of  Charities  and  Corrections  were  estabhshed.  These  two 
Boards  seem  to  have  been  operated  jointly,  since  all  supplies  for  the 
former  Board  were  furnished  by  the  latter.  The  State  Board  of  Chari- 
ties and  Corrections  also  furnished  the  clerical  help  needed  to  look  after 
clemency  matters.  This  arrangement  did  not  work  well.  Friction 
between  the  two  Boards  developed  to  the  extent  that  the  Biennial 
Report  of  the  Board  of  Pardons  was  not  published  during  the  period 
1912-16,  although  such  publication  is  ordered  by  statute.  Finally  in 
1919  the  legislature  segregated  the  two  Boards,  since  which  their 
relations  have  been  separate  and  distinct.^ 

The  Board  of  Pardons  consists  of  four  members  to  be  appointed  by 
the  governor  for  a  term  of  four  years.  He  is  ex  officio  a  member  and  also 
the  president  of  the  Board.  It  is  the  duty  of  the  secretary,  in  conjunction 
with  the  Board,  to  investigate  all  applications  for  executive  clemency 
and  to  transmit  all  information  with  its  recommendations  to  the  governor. 
This  makes  the  Board  purely  an  advisory  one.  This  Board  differs  from 
the  California  and  Oregon  Advisory  Boards  in  that  its  duty  is  to  investi- 
gate all  applications  for  clemency,  and  not  merely  those  referred  to  it  by 
the  governor  as  is  true  of  the  California  and  Oregon  Boards.^  As  a 
matter  of  fact  the  Board  seems  limited  to  a  consideration  of  applications 
for  pardon,  reprieve,  and  commutation.  Questions  of  parole  are  not 
passed  upon  by  the  Board,  since  the  governor  retains  this  matter  in  his 
own  hands  entirely.  This  is  so  because  a  prisoner  who  has  served  the 
minimum  term  is  eligible  for  parole  under  the  indeterminate  sentence 
law  which  works  automatically  without  action  by  the  Board  of  Pardons. 

Colorado  governors  seem  to  have  reUed  to  a  considerable  degree 
upon  the  advice  and  recommendations  of  the  Board.  Governor  Buchtel 
in  his  biennial  message  of  January  11,  1909,  to  the  legislature  states  he 
had  pardoned  a  total  of  thirty  applicants  during  the  preceding  two  years. 

•  Session  Laws  of  Colorado,  1919,  chap.  58,  sec.  i.  '  Ibid.,  sec.  4. 


82      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

He  infers  that  his  action  was  based  on  the  recommendations  of  the 
Board  of  Pardons. 

Governor  Shafroth  from  January  12,  1909,  to  January  10,  191 1, 
granted  one  pardon,  twenty-nine  commutations  from  the  penitentiary, 
eighteen  commutations  from  county  jails,  one  commutation  from  the 
reformatory,  and  one  reprieve.  Of  these  the  Board  of  Pardons  recom- 
mended the  one  pardon,  seventeen  commutations  from  the  penitentiary, 
and  twelve  commutations  from  county  jails.'  From  January  11,  191 1, 
to  January  14,  1913,  Governor  Shafroth  granted  three  pardons,  thirty- 
four  commutations,  and  one  reprieve.  Nearly  all  of  these  were  recom- 
mended by  the  Board.^ 

Governor  Elias  M.  Ammons  during  his  term  of  office  from  January, 
1913,  to  January,  1915,  granted  one  reprieve,  one  pardon,  and  fifty- 
seven  commutations.  The  Pardon  Board  did  not  make  a  favorable 
recommendation  in  the  one  pardon  case  and  in  the  one  reprieve  case, 
but  it  made  favorable  recommendations  in  the  entire  fifty-seven  com- 
mutation cases.^ 

From  March  31,  1915,  to  January  8,  1917,  Governor  George  A. 
Carlson  granted  eight  pardons,  thirty-seven  commutations,  and  one 
reprieve.  Four  of  the  pardons  and  twenty-three  of  the  commutations 
were  recommended  favorably  by  the  Pardon  Board.  Of  the  remaining 
fourteen  commutation  cases  the  sentence  was  commuted  in  thirteen  of 
the  cases  so  as  to  allow  the  return  of  the  prisoners  to  other  state  prisons 
as  parole  violators,  or  as  escaped  prisoners.^  Giving  consideration  to 
this  last  fact  it  is  seen  that  Governor  Carlson  followed  the  advice  of  the 
Board  very  closely. 

Governor  Gunter  reported  to  the  Twenty-second  General  Assembly, 
January  8,  1919,  that  from  May  17,  1917,  to  January  2,  1919,  he  had 
granted  ten  pardons,  thirty-four  commutations,  and  one  reprieve.  Of 
these  the  Pardon  Board  recommended  favorably  five  pardon  cases 
and  the  entire  thirty-four  commutation  cases.^ 

From  this  summary  covering  a  period  of  about  ten  years  it  appears 
that  the  Pardon  Board  is  of  considerable  assistance  to  the  governor, 
and   that   he   has   generally  followed   its   recommendations.     This   is 

»  House  Journal  of  Eighteenth  General  Assembly,  April  25,  1911,  pp.  25-59. 
'  Tenth  Biennial  Report  of  State  Board  of  Pardons  of  Colorado,  1 910-12,  pp.  10-13; 
and  Senate  Journal  of  Nineteenth  Legislative  Session,  p.  93. 

3  Senate  Journal  of  Twentieth  Legislative  Session,  191 5,  pp.  79-96. 

*  House  Journal  of  Twenty-first  General  Legislative  Assembly,  1917,  pp.  2-9. 

i  Senate  Journal  of  Twenty-second  General  Assembly,  1919,  pp.  28-36. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  83 

perhaps  partly  due  to  the  fact  that  the  governor  is  president  of  the 
Board  and  helps  in  reaching  the  conclusions  which  are  arrived  at  by  that 
body.  Previous  governors  had  always  taken  an  active  part  in  the 
discussions  and  voting  of  the  Board.  But  when  Governor  Shoup  became 
head  of  the  Board  in  19 19  he  followed  the  poUcy  of  acting  merely  as 
a  presiding  officer  and  refrained  from  voting  and  indicating  his  views 
while  meeting  with  the  Board. 

The  proceedings  of  the  Board  are  transmitted  in  a  biennial  report 
of  the  secretary  to  the  governor,  and  the  action  of  the  governor  on 
clemency  matters  is  reported  by  him  to  the  legislature  at  each  regular 
session.  The  records  and  files  of  the  Pardon  Board  are  kept  in  a  most 
excellent  manner,  due  to  the  fact  that  the  secretary's  time  is  given  wholly 
to  the  work  in  this  office.  Long  service  by  this  official  also  contributes 
to  the  general  efficiency  that  exists  with  respect  to  the  records. 

One  feels  that  clemency  matters  are  well  handled  in  Colorado  and 
that  a  conscientious  and  successful  effort  is  made  to  protect  the  public 
welfare  and  yet  be  of  assistance  to  the  criminal. 

THE   PARDONING   POWER   IN   WYOMING 

The  constitution  of  Wyoming  provides  that  the  governor  shall 
have  power  to  grant  clemency  after  conviction  but  the  legislature  may 
by  law  regulate  the  manner  in  which  clemency  may  be  apphed  for. 
He  shall  communicate  to  the  legislature  at  each  regular  session  each  case 
of  clemency  granted  with  his  reasons  for  granting  the  same.' 

The  legislature  has  created  a  Board  of  Pardons  to  consist  of  the 
State  Board  of  Charities  and  Reform,  with  the  governor  as  president  of 
the  Board. ^  This  Board  consists  of  the  governor,  secretary  of  state, 
state  treasurer,  state  auditor,  and  the  state  superintendent  of  public 
instruction.^  It  is  provided  that  the  Pardon  Board  "shall  investigate 
all  applications  for  executive  clemency  and  lay  the  facts  before  the 
governor  with  its  recommendations. "•<  It  is  seen  that  the  Pardon 
Board  in  Wyoming  is  similar  to  the  Colorado  Board  in  the  fact  that  the 
governor  is  president  of  each  Board,  that  each  Board  investigates  all 
applications  for  executive  clemency,  and  that  the  Boards  are  purely 
advisory.  They  differ  in  the  fact  that  the  Colorado  Board,  aside  from 
the  governor,  is  composed  entirely  of  private  citizens,  whereas  the 
Wyoming  Board  consists  wholly  of  state  officials. 

The  pardon  records  of  the  Board  are  kept  in  the  office  of  the  State 
Board  of  Charities  and  Reform.     They  show  the  recommendations 

'  Constitution  of  Wyoming,  Art.  4,  sec.  5.  ^  Ibid.,  sec.  436. 

'  Wyoming  Compiled  Statutes,  1910,  sec.  551.  *  Ibid.,  sec.  552. 


84      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

made  by  the  Board  in  respect  to  clemency,  but  do  not  show  the  reasons 
for  making  the  recommendations. 

It  is  of  interest  to  note  the  degree  to  which  the  governor  has  acted 
on  the  recommendations  of  the  Board.  To  do  this  it  is  necessary  to 
examine  his  report  to  the  legislature  at  each  regular  session,  which  is 
required  by  the  constitution,  and  in  which  he  gives  his  reasons  in  each 
case  for  the  action  he  has  taken.  The  reports  of  the  governors  in  this 
matter  are  not  included  in  the  printed  biennial  messages  to  the  legislature, 
but  are  found  in  the  Senate  or  House  journals. 

For  some  unexplained  reason  such  a  report  for  the  biennial  period 
from  igog  to  191 1  is  not  to  be  found  in  either  the  House  or  the  Senate 
journal  of  the  Eleventh  Legislature  (191 1).  During  the  biennial  from 
January  2,  19 11,  to  January  i,  19 13,  Governor  Joseph  M.  Carey  granted 
forty  pardons  and  sixty  commutations  to  prisoners  confined  in  the  state 
prison.  These  grants  were  all  made  on  the  recommendation  of  the 
State  Board  of  Pardons.^  In  addition  the  governor  granted  pardons  to 
sixteen  juvenile  delinquents,  and  to  three  prisoners  in  county  jails. 
The  report  to  the  legislature  shows  the  name  of  the  convict,  crime, 
sentence,  date  of  sentence,  date  of  granting  clemency,  and  reasons  for 
granting  the  same. 

From  January  i,  1913,  to  January  4,  1915,  Governor  Joseph  M. 
Carey  granted  twenty-three  pardons  and  thirty-six  commutations  to 
persons  sentenced  to  the  state  prison.^  All  of  these  were  recommended 
by  the  State  Board  of  Pardons.  In  thirteen  cases  where  pardons  were 
granted  the  appHcants  had  already  been  paroled.  Four  other  pardons 
were  granted  as  "Christmas  pardons."  In  addition  to  the  above,  nine 
pardons  were  granted  to  juvenile  delinquents.  The  report  to  the 
legislature  is  similar  to  that  for  the  previous  biennial  and  shows  the 
reasons  for  granting  clemency  in  each  case. 

The  report  of  Governor  John  B.  Kendrick  for  the  period  from 
January,  1915,  to  January,  191 7,  shows  that  he  granted  seventeen 
pardons  and  no  other  form  of  clemency.  It  also  gives  the  name  of  the 
convict  in  each  case,  the  name  of  the  crime  in  fourteen  cases  but  not  in 
three  cases,  the  date  of  sentence  in  eleven  cases  but  not  in  six  cases,  the 
date  when  pardon  was  granted  in  all  cases,  and  the  reasons  for  granting 
pardons  in  seven  cases  but  not  in  ten  cases.^    The  reasons  given  do  not 

^  Senate  Journal  of  Twelfth  Wyoming  Legislature,  191 3,  pp.  92-101. 
*  Senate  Journal  of  Thirteenth  Wyoming  Legislature,  191 5,  pp.  26-32. 
3  Senate  Journal  of  Wyoming  Legislature,  Session  of  igij,  P-  57. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  85 

indicate  whether  or  not  the  Pardon  Board  made  any  recommendations 
which  were  acted  upon. 

Clearly  the  data  in  this  report  does  not  conform  to  the  constitutional 
requirements.  The  secretary  of  the  Pardon  Board  questions  the 
accuracy  of  this  report.  An  examination  of  the  Biennial  Report  of 
the  State  Board  of  Pardons  for  the  two  years  ending  September  30, 
1916,'  shows  that  during  this  period  the  Board  recommended  the  granting 
of  twenty-six  pardons  and  forty  commutations.  The  period  covered 
by  the  report  of  the  Board  does  not  coincide  with  the  period  of  the 
governor's  report  and  therefore  is  of  value  only  in  pointing  out  that 
during  the  period  of  Governor  Kendrick's  administration  the  chief 
executive  followed  the  advice  of  the  Pardon  Board  with  much  less 
consistency  than  did  his  predecessor  in  office.  There  is  reason,  however, 
as  has  already  been  pointed  out,  to  question  the  accuracy  of  this  report 
to  the  legislature,  and  the  secretary  of  the  Pardon  Board  goes  so  far  as 
to  say  that  the  data  is  erroneous. 

The  next  report  to  the  legislature  regarding  clemency  granted  is 
made  by  Governor  Robert  D.  Carey  and  covers  the  period  from  Septem- 
ber 30,  1916,  to  September  30,  1918.^  It  is  evident  that  this  report 
overlaps  that  of  Governor  Kendrick's,  extending  as  it  does  from  January, 
1915,  to  January,  1917.  Consequently  from  September  30,  1916,  to 
January,  191 7,  there  may  be  duplication  in  respect  to  the  clemency 
extended,  but  this  cannot  be  definitely  determined  from  the  reports. 

Governor  Robert  D.  Carey's  report  shows  that  during  the  period 
covered  he  granted  forty-six  pardons.  The  application  or  request  for 
these  pardons  was  made  by  the  State  Board  of  Pardons  in  eight  cases, 
by  the  warden  of  the  state  prison  in  nine  cases,  and  by  private  individuals 
in  twenty-nine  cases.  The  governor  also  granted  thirty-nine  commuta- 
tions. The  application  for  these  commutations  was  made  by  the  State 
Board  of  Pardons  in  seven  cases,  by  the  warden  in  seventeen  cases, 
and  by  private  individuals  in  fifteen  cases.  The  report  of  the  governor 
contains  the  name  of  the  convict,  his  prison  number,  date  of  sentence, 
county  in  which  convicted,  the  crime,  the  sentence,  the  form  of  clemency 
granted,  by  whom  application  for  clemency  was  made,  and  the  date  of 
granting  clemency.  The  reasons  for  granting  clemency  are  not  given 
in  the  report,  although  this  information  is  required  to  be  given  by  a 
provision  of  the  state  constitution. 

'  Biennial  Report  of  Wyoming  Stale  Board  of  Charilics  and  Reform,  igij-id, 
pp. 117-19- 

»  Senate  Journal  of  Wyoming  Legislature,  Session  of  1919,  pp.  294-96. 


86      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

During  a  part  of  the  biennial  from  September  30,  19 16,  to  September 
30,  1918,  Secretary  of  State  Frank  L.  Houx  was  acting  governor  of  the 
state.  In  so  far  as  he  granted  clemency  such  is  included  in  the  report 
of  Governor  Robert  D.  Carey.  Acting  Governor  Houx  created  consider- 
able discussion  when  he  granted  a  few  pardons  without  consulting  the 
Pardon  Board  and  withheld  his  action  from  the  press.  In  contrast  to 
this  poUcy  Governor  Carey  always  consulted  the  Board,  and  even  refused 
to  grant  an  urgent  pardon  without  first  caUing  the  Board  into  special 
session. 

It  appears  that  in  Wyoming  the  governor  has  not  always  reHed  upon 
the  recommendations  of  the  Pardon  Board  in  granting  clemency.  Some 
governors  have  followed  its  advice  scrupulously  and  others  have  reUed 
to  a  greater  degree  upon  their  own  judgment.  The  records  are  not 
always  in  the  best  possible  condition  and  this  gives  rise  to  some  confusion 
in  making  a  comparative  study. 

The  method  of  reporting  the  action  of  pardon  authorities  varies 
considerably.  In  some  states  much  information  is  set  forth  with  a 
reasonable  degree  of  fulness,  whereas  in  other  states  it  is  reported  with 
the  utmost  brevity.  A  portion  of  the  reports  of  the  Pardon  Boards  of 
Nevada  and  Colorado  are  inserted  to  illustrate  this  difference. 


ACTION  OF  NEVADA  BOARD  OF  PARDONS,  1917-18' 


Name 


Pardoned 
Term  of  Board 


Crime 

Burglary 
Assault  to  rob 
Robbery 
Grand  larceny 
Grand  larceny 
Grand  larceny 


Sentence 
in  Years 


I  to  15 
I  to  14 
I  to  IS 

1  to  14 

2  to  14 

I  to  14 


John  F.  O'Day        .      .      .    May  191 7 

Gus  Price May  191 7 

C.  A.  Whitaker  .  .  .  May  191 7 
A.  N.  Stephens  .  September  191 7 
Louis  Popovich  .    October  191 7 

Leo  Sepulveda  .      .      .    October  191 7 

(Tljis  is  the  form  in  which  pardons,  paroles,  commutations,  etc.,  are 
reported.) 

ACTION  OF  COLORADO  BOARD  OF  PARDONS,  1917-18' 

Adams,  H.  L.,  No.  9882,  Scotch-Irish,  age  27,  married,  waiter.  Catholic; 
sentenced  from  Denver  County,  January  29,  1916,  by  Judge  H.  P.  Burke, 
to  7  to  ID  years  for  burglary,  larceny,  and  receiving  stolen  goods. 

The  evidence  showed  that  this  prisoner,  in  connection  with  one  C.  S. 
Maddox,  had  burglarized  several  Denver  homes.  This  prisoner  was  wanted 
by  the  Texas  authorities  and  his  sentence  was  commuted  November  13,  1916, 

^  This  information  has  already  appeared  in  print  and  is  not,  therefore,  of  a  con- 
fidential nature. 


PARDONING  POWER  IN  SOME  WESTERN  STATES  87 

to  a  term  of  9  months  to  10  years,  in  order  that  he  might  be  released  to  the 
Texas  penitentiary.  He  asked  for  an  absolute  pardon,  thinking  that  if  he 
were  released  by  Colorado  the  Texas  authorities  would  also  release  him,  as  it 
was  claimed  that  he  was  suffering  from  tuberculosis.  After  carefully  consider- 
ing all  the  facts,  executive  clemency  was  denied  April  12,  1918. 

Abeyta,  Casimiro,  No.  8702,  Mexican,  age  38,  married,  miner,  Catholic; 
sentenced  from  Huerfano  County,  February  11,  1913.  by  Judge  A.  W.  McHend- 
rie,  to  a  term  of  18  to  20  years  for  murder. 

The  prisoner,  together  with  Amadeo  Gallegos,  was  found  guilty  of  the 
murder  of  Luis  Naez.  The  crime  was  committed  at  a  dance,  when  all  parties 
concerned  were  probably  under  the  influence  of  liquor.  Executive  clemency 
was  denied  June  8,  191 7. 

Baragas,  Gregorio,  No.  7247,  Mexican,  age  24,  single,  laborer,  Catholic; 
sentenced  from  Routt  County,  October  10,  1908,  by  Judge  John  T.  Shumate, 
to  life-imprisonment  for  murder. 

The  trouble  started  when  prisoner,  together  with  other  Mexicans,  was 
working  for  the  Moffat  Road.  Some  of  the  Mexicans  were  continually  teasing 
the  prisoner,  who  was  a  boy  tjjien  18  years  of  age.  He  states  that  he  thought 
he  was  defending  himself  at  the  time  he  killed  a  fellow  Mexican.  The  sentence 
was  commuted  June  8,  191 7,  to  a  term  of  24  years  and  9  months  to  life- 
imprisonment,  which  would  permit  of  his  release  on  parole  in  about  5  years. 
This  commutation  was  granted  on  account  of  the  youth  of  the  prisoner  at  the 
time  of  trial  and  his  excellent  prison  record. 


CHAPTER  VI 

STANDARDS  AND  THE  PROBLEM  OF  STANDARDIZATION  IN  THE 
ADMINISTRATION  OF  THE  PARDONING  POWER 

The  fundamental  principle  underlying  punishment  for  crime  is 
that  of  justice.  Justice  to  the  public  demands  that  punishment  shall 
be  inflicted  because  of  its  general  deterrent  effects;  justice  to  the  offender 
demands  that  the  penalty  shall  be  proportionate  to  the  offense.  How- 
then  shall  the  relativity  of  the  penalty  to  the  offense  be  determined  ? 
This  problem  is  first  one  of  legislation.  But  our  legislatures  have  but 
partially  succeeded  in  approximating  the  degree  of  the  seriousness  of 
crime  and  in  prescribing  proportionate  penalties.  It  has  well  been 
pointed  out  by  a  leading  student  of  legislation  that 

In  most  (American)  jurisdictions  the  criminal  law  is  codified ;  the  codifica- 
tion covers  all  the  common  felonies,  which  are  consequently  considered  in 
relation  to  each  other,  with  the  efi^ect  that  there  is  a  tolerable  proportionateness 
of  penalties.  The  differentiation  of  each  generic  felony  into  its  possible  sub- 
species is,  however,  only  very  imperfectly  carried  out  in  American  codes. 
....  The  American  system  is  to  allow  a  liberal  margin  between  minimum 
and  maximum  penalty,  with  the  result  that  individual  estimate  is  substituted 
for  abstract  differentiation.  This  may  be  intended  to  make  for  better  justice, 
but  it  is  likely  to  make  for  greater  arbitrariness  and  chance.' 

Because  of  this  lack  of  standardization  of  generic  felonies  in  our 
systems  of  legislation  the  problem  of  attempting  to  determine  accurate 
justice  devolved  upon  the  judiciary.  In  each  criminal  case  a  definite 
and  fixed  penalty  was  usually  imposed  upon  the  guilty  culprit.  The 
judge  was  called  upon  to  measure  the  gravity  of  the  offense  and  mete 
out  justice  in  the  form  of  a  definite  and  exact  sentence  But  again 
arbitrariness  was  likely  to  occur.  Judges  upon  neighboring  benches  or 
judges  who  succeeded  each  other  on  the  same  bench  were  likely  to  arrive 
at  different  estimates  of  the  seriousness  of  similar  offenses. 

This  situation,  in  connection  with  advances  in  the  study  of  crimi- 
nology, has  led  to  the  adoption  of  the  indeterminate  sentence  in  most 
states.  But  very  few  states,  among  them  Arkansas,  Maryland,  Okla- 
homa, Virginia,  and  Wisconsin,  have  failed  to  enact  some  form  of  the 
indeterminate  sentence  law.     Such  a  law,  ordinarily,  is  applicable  to 

'  Freund,  Standards  of  American  Legislation,  pp.  258-59. 


ST  A  NBA  RDIZA  TION  89 

all  offenders  except  those  convicted  of  treason  or  first  degree  murder. 
In  some  states  other  offenders  do  not  come  within  the  scope  of  its 
operation.  In  Connecticut  if  a  convict  has  twice  previously  been 
sentenced  to  the  state  prison  the  court  sentences  him  to  thirty  years. 
Persons  guilty  of  rape  or  kidnaping  in  Illinois,  habitual  criminals  in 
Massachusetts,  persons  guilty  of  rape  by  force,  or  administering  poison 
with  intent  to  kill  in  Montana,  of  rape  and  kidnaping  in  Nebraska,  and 
persons  previously  convicted  of  a  felony  in  West  Virginia  are  not  within 
the  operation  of  the  indeterminate  sentence  law  in  these  respective 
states. 

When  a  convict  is  sentenced  under  the  indeterminate  sentence  law 
the  penalty  ranges  between  the  minimum  term  and  the  maximum  term 
for  the  offense  of  which  he  is  convicted,  but  a  definite  term  is  not  fixed. 
Sometimes  the  judge  pronouncing  sentence  is  required  to  recommend 
to  the  pardoning  authority  a  fixed  sentence  somewhere  between  the 
minimum  and  maximum  extremes,  but  in  most  states  the  judiciary  is 
not  called  upon  to  make  such  recommendation. 

Frequently  when  the  minimum  term  has  been  served  the  prisoner 
automatically  is  eligible  for  parole.  It  was  for  this  reason  that  Oregon 
modified  its  indeterminate  sentence  law  in  1919.  As  soon  as  prisoners 
had  served  their  minimum  term  in  this  state  they  felt  that  they  should 
be  paroled  and  were  discontented  and  dissatisfied  if  they  were  not. 
Under  the  new  law  in  that  state  prisoners  are  now  sentenced  without 
limit,  except  that  the  maximum  term  is  fixed  in  each  case. 

As  a  result  of  the  general  enactment  of  the  indeterminate  sentence 
law  in  the  American  states  the  problem  as  to  when  a  convict  shall  be 
paroled  and  finally  discharged  has  been  put  upon  the  pardon  authorities. 
This  means  an  enlargement  of  work  and  a  corresponding  increase  of 
discretionary  power  by  such  authorities.  In  addition,  the  work  of 
pardon  authorities  is  on  the  increase  because  of  a  growing  prison  popula- 
tion. This  gives  rise  to  the  problem  of  standardization.  Have  pardon 
authorities  developed  a  logical,  systematic  plan  for  the  granting  of 
clemency,  or  is  clemency  issued  according  to  caprice,  individual  estimate, 
or  personal  judgment  ? 

Certain  features  connected  with  the  administration  of  clemency 
have  been  quite  definitely  standardized.  Thus  in  most  states  a  pardon 
can  be  granted  only  after  conviction.  The  power  to  pardon  for  treason 
and  impeachment  is  greatly  curtailed  and  circumscribed.  The  time  and 
place  for  holding  hearings  is  fixed.  Applicants  for  clemency  must 
furnish  certain  required  data  or  information,  often  on  prescribed  applica- 


90      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

tion  blanks.  Certain  requirements  concerning  publicity  of  hearings 
must  be  complied  with,  particularly  in  regard  to  the  publication  and 
posting  of  notice  Statements  of  facts  and  opinion  are  required  from 
the  trial  judge  and  prosecuting  attorney  in  some  states.  Either  open 
or  closed  hearings  are  provided  for.  The  powers  of  pardon  authorities 
to  review  decisions  of  trial  courts  is  definitely  determined  in  some  states. 
Some  efforts  have  been  made  to  evaluate  evidence.  Limitations  have 
been  place  upon  counsel  representing  applicants  for  clemency.  The 
frequency  of  reapplication  for  clemency  has  been  limited.  The  use  of 
a  seal  has  generally  been  required.  All  of  these  matters  deal  chiefly 
with  questions  of  procedure,  however. 

A  further  problem  exists  in  the  form  of  determining  the  degree  of 
punishment  that  a  convict  should  undergo.  How  long  should  he  be 
incarcerated  ?  When,  if  ever,  should  he  be  paroled  or  pardoned  ? 
Such  questions  are  difficult  of  solution  since  it  is  impossible  to  measure 
penalties  on  an  absolutely  scientific  basis. 

An  attempt  to  solve  this  problem  has  been  made  by  making  release 
from  prison  partially  dependent  upon  behavior  while  in  prison.  Every 
state,  so  far  as  can  be  ascertained,  has  adopted  some  definite  scale  for 
the  reduction  of  time  to  be  served,  based  upon  good  behavior.  The 
amount  of  good  time  allowed,  as  it  is  generally  called,  varies  in  different 
states  but  is  quite  liberal  in  all  of  them.  Some  states  have  prepared 
rather  extensive  tables  making  it  possible  to  see  at  a  glance  how  much 
good  time  is  to  be  deducted  for  each  year  or  fractional  year  of  incarcera- 
tion. This  method  serves  the  double  purpose  of  putting  a  premium 
on  good  behavior,  thereby  facilitating  the  maintenance  of  prison  dis- 
cipline, and  also  fixes  a  definite  standard  based  on  behavior  for  the 
reduction  of  sentence. 

Illinois  has  developed  a  system  based  on  the  principle  that  practically 
every  man  committed  to  prison  must  at  some  time  be  released  and  again 
sent  into  society.  Therefore  as  soon  as  a  person  has  been  incarcerated 
the  system  immediately  takes  hold  of  him  and  starts  the  process  of 
attempted  regeneration.  As  soon  as  he  is  committed  he  undergoes  a 
thorough  examination  by  the  prison  physician,  psychiatrist,  and  psy- 
chologist, each  of  whom  prepares  a  report.  Then  the  prisoner  is  called 
into  conference  by  the  prison  staff,  which  explains  the  progressive  merit 
system  to  him  and  formulates  a  work  program  for  him  as  a  result  of 
the  personal  examination.  Prisoners  are  divided  into  five  grades: 
A,  B,  C,  D,  E.  When  first  committed  each  prisoner  is  placed  in  grade 
C.     He  is  eligible  to  grade  B  after  three  months,  and  after  three  months 


STANDARDIZA  TION  9 1 

of  satisfactory  service  here  he  may  be  placed  in  grade  A.  After  a  three 
months'  service  in  this  grade  with  satisfaction  his  case  comes  automati- 
cally upon  the  docket  for  a  hearing  by  the  Division  of  Pardons  and 
Paroles. 

The  grading  of  a  prisoner  is  based  on  (a)  workmanship  and  {b) 
behavior.  The  standard  of  marking  in  workmanship  rests  on  the 
sincerity  of  the  prisoner's  efforts  in  producing  results  as  well  as  on  the 
kind  and  amount  of  work  produced.  His  behavior  is  graded  on  the  basis 
of  the  opinion  of  the  prison  keeper  and  prison  stafif  by  taking  into  due 
consideration  the  physical  and  mental  capacity  of  the  prisoner  together 
with  his  general  attitude  and  deportment.' 

The  merit  system,  as  described  by  the  superintendent  of  prisons, 
provides  that  prisoners  in  preparation  for  release  shall  pass  through  the 
following  preparatory  stages:  (a)  confinement  within  the  prison,  and 
subject  to  all  the  prison  rules,  with  very  little  if  any  personal  responsi- 
bility; {b)  increasing  opportunity  to  merit  more  confidence  on  the  part 
of  prison  authorities  by  strict  application  to  industry  and  adherence  to 
prison  regulations;  (c)  positions  of  trust  within  the  prison  walls;  (J) 
life  in  cottages  outside  the  prison  walls,  under  supervision  of  the  prison 
officials;   (e)  work  on  the  prison  farm,  without  guards;   (/)  parole.-' 

The  prison  staff  consists  of  the  warden,  the  assistant  warden,  the 
physician,  the  psychiatrist,  the  psychologist,  and  at  least  two  subordinate 
prison  ofi&cials  who  are  in  close  personal  contact  with  the  prisoners. 
This  staff  holds  a  daily  session,  and  its  deliberations  and  conclusions 
are  carefully  recorded  by  a  secretary.  When  the  Division  of  Pardons 
and  Paroles  is  asked  to  act  on  a  question  of  clemency  involving  a  criminal 
in  confinement  it  has  before  it  this  entire  prison  record  of  each  applicant. 

For  parole  purposes  the  state  is  divided  into  ten  parole  districts. 
A  parole  agent  is  in  charge  in  each  district  and  is  in  close  communication 
with  a  parole  supervisor  at  JoHet,  Chester,  and  Pontiac.  Each  agent 
makes  a  daily  and  a  monthly  report  concerning  his  activities  and  the 
men  under  his  supervision.  This  information  is  also  in  the  hands  of 
the  Division  of  Pardons  and  Paroles  when  it  considers  appUcations  for 
clemency  from  released  criminals  on  parole.^ 

'  "Methods  and  Results  of  Administration,"  paper  presented  by  John  L.  Whit- 
man, Superintendent  of  Prisons,  at  the  twelfth  annual  meeting  of  the  American 
Institute  of  Criminal  Law  and  Criminology  held  at  Indianapolis,  September  17,  1920. 

^Ibid. 

i  Biennial  Report  oj  Illinois  Division  of  Pardons  and  Paroles,  September  30,  1918, 
to  September  30,  1920. 


92      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

In  this  manner  a  criminal's  deportment  both  within  prison  and  while 
on  parole  can  be  determined  quite  accurately.  The  other  states  have 
systems  more  or  less  like  the  Illinois  system,  but  the  system  in  this 
state  has  been  described  as  a  type  because  it  is  generally  recognized 
that  it  is  one  of  the  best  in  the  Union. 

More  progress  has  been  made  in  standardizing  the  conditions  under 
which  parole  will  be  granted  than  in  the  case  of  other  forms  of  clemency. 
A  prisoner  may  be  eUgible  for  parole  after  he  has  served  a  minimum 
term  in  Arizona,  Connecticut,  Georgia,  Idaho,  Illinois,^  Indiana,  Kansas, 
Kentucky,  Maine,  Michigan,  Nebraska,  New  Jersey,  North  CaroUna, 
Ohio,  Pennsylvania,  South  Dakota,  Tennessee,  Washington,  West 
Virginia,  and  Wyoming. 

In  Arkansas  a  prisoner  may  be  paroled  who  has  served  one-third 
of  a  definite  term.  No  person  will  be  paroled  in  Connecticut,  (a)  who 
is  serving  a  life-term,  {b)  who  is  known  to  have  suffered  a  previous 
conviction  for  felony,  (c)  whose  prison  record  is  not  such  as  to  afford 
reasonable  probability  that  he  will  lead  a  new  life,  {d)  who  is  serving  a 
time  sentence  and  who  has  not  served  at  least  one-half  of  the  full  term, 
not  reckoning  time  earned  by  good  conduct.^ 

A  parole  will  be  granted  to  no  one  in  Georgia  who  is  serving  a  Hfe- 
sentence  for  treason,  arson,  rape,  or  assault  with  intent  to  commit  rape. 
No  prisoner  serving  a  hfe-sentence  for  any  other  crime  will  be  granted 
a  parole  until  he  has  served  at  least  ten  full  years  of  his  sentence.  ^ 
Prisoners  are  not  eUgible  for  parole  in  Idaho  if  convicted  of  treason  or 
murder  in  the  first  degree,  or  who  have  served  a  previous  term  in  any 
penitentiary."  The  Board  is  empowered  to  establish  three  grades  of 
prisoners,  and  no  prisoner  is  released  on  parole  unless  he  has  been  for 
six  months  a  member  of  the  first  grade. ^ 

In  Illinois  persons  given  a  definite  sentence  are  eligible  to  parole 
as  follows:  Persons  sentenced  for  Hfe,  at  the  end  of  twenty  years;  for 
less  than  life  after  serving  minimum  sentence  for  the  offense,  good  time 
being  allowed,  but  not  until  at  least  one-third  of  the  time  fixed  in  the 

'  The  rules  of  the  Illinois  board  also  prescribe  that  a  second  termer  cannot  appear 
before  the  Division  until  he  shall  have  served  twenty-one  months;  a  third  termer 
cannot  appear  until  he  shall  have  served  thirty  months;  a  fourth  termer  until  he  shall 
have  served  thirty-eight  months. 

^  General  Statutes  of  Connecticut,  1918,  sec.  2019. 

3  Code  of  Georgia,  191 1,  sec.  1224. 

"t  Idaho  Session  Laws,  1909,  House  Bill  No.  214,  sec.  8. 

5  Idaho  Revised  Code,  1908,  sec.  8264. 


STANDARDIZATION  93 

definite  sentence  has  been  served.'  The  Parole  Board  of  Iowa  may 
parole  any  prisoners  in  the  penitentiaries  except  those  serving  life-terms. 
It  may  also  on  recommendation  of  the  trial  judge  and  county  attorney 
parole,  after  con\dction  and  before  commitment,  persons  not  previously 
convicted  of  a  felony.^  No  person  who  has  served  two  previous  terms 
in  any  penitentiary  is  eligible  for  parole  in  Kansas.^  A  person  committed 
for  life  is  not  eligible  for  parole  in  Kentucky  until  he  has  served  eight 
years.'' 

The  Louisiana  Board  of  Parole  cannot  parole  a  Ufe-termer  until  he 
has  served  at  least  one-third  of  the  actual  time  he  would  have  served 
if  classed  as  eUgible  for  reduction  of  sentence  under  the  laws  of  Louisiana. 
The  parole,  in  the  case  of  life-termers,  must  be  approved  by  the  Board 
of  Pardons.5  In  Maryland  the  Advisory  Board  of  Parole  makes  its 
recommendations  to  the  governor  in  all  cases  where  the  parties  have 
served  one-third  of  their  term,  and  in  all  other  cases  when  requested  to 
do  so  by  the  governor.  Michigan  confers  authority  to  grant  parole 
exclusively  upon  the  governor  in  all  cases  of  murder,  actual  forcible 
rape,  for  offenses  by  public  officers  in  violation  of  their  duties  as  such 
officers,  and  to  all  persons  serving  sentences  for  conspiracy  to  defraud 
public  municipalities,  or  for  bribing  or  attempting  to  bribe  pubhc 
officials.  In  all  other  cases  such  authority  is  conferred  upon  the  Advisory 
Pardon  Board.  No  person  can  be  paroled  in  Michigan  until  a  "first 
friend  and  adviser,"  who  is  not  a  relative,  has  been  secured.'' 

Any  person  may  be  paroled  by  the  State  Board  of  Pardons  in  Minne- 
sota, provided  no  convict  serving  a  life-sentence  can  be  paroled  unless 
he  has  served  thirty-five  years,  less  diminution  allowed  for  good  behavior, 
if  his  sentence  had  been  thirty-five  years,  and  then  only  by  unanimous 
consent  of  the  Board  in  writing.'  In  Montana  any  person  receiving  an 
indeterminate  sentence  may,  in  the  discretion  of  the  governor  and  the 
State  Board  of  Prison  Commissioners,  be  paroled  at  any  time  after  he 
has  served  one-half  of  the  minimum  term.*  The  provisions  of  the  law 
relating  to  parole  in  Nebraska  are  not  applicable  to  persons  confined  for 

*  Parole  Act  of  191 7  as  amended  and  in  force  July  i,  1919,  sec.  i. 

*  Iowa  Code,  sec.  5718-a  20. 

3  General  Statutes  of  Kansas,  1915,  sec.  8187. 

''  Kentucky  Statutes,  1915,  sec.  3228. 

'Laws  of  Louisiana,  1916,  Act  125,  p.  282. 

''  Public  Laws  of  Michigan,  191 7,  Number  198,  sec.  2. 

'Laws  of  Minnesota,  1911,  chap.  298,  sec.  6. 

*  Session  Laws  of  Montana,  191 7,  chap.  16,  sec.  2. 


94      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

treason,  murder,  rape,  or  kidnaping,  nor  any  person  who  has  served 
two  previous  terms  in  any  penitentiary.^ 

The  Nevada  Board  of  Parole  Commissioners  may  parole  any  prisoner 
who  has  served  one  calendar  year  and  who  has  not  been  previously 
convicted  of  a  felony  nor  has  served  a  term  in  a  penal  institution.  But 
no  prisoner  serving  a  life-sentence  may  be  paroled  until  he  has  served 
at  least  seven  calendar  years.^  No  person  who  has  served  two  previous 
terms  in  a  penitentiary  is  eligible  to  parole  in  New  Mexico.^  Prisoners 
who  have  served  the  minimum  term  in  North  Carolina,  provided  it  is 
not  less  than  one-fourth  of  the  term  for  which  they  were  sentenced,  and 
rank  among  the  prisoners  of  the  first  grade  are  eligible  for  parole."  The 
following  persons  can  under  no  circumstances  be  paroled  from  the 
penitentiary  in  North  Dakota:  (a)  a  person  convicted  of  first  degree 
murder,  {b)  a  person  finally  convicted  in  any  jurisdiction  of  a  felony 
other  than  that  for  which  he  is  imprisoned,  {c)  a  person  who  has  not  a 
good  prison  record  for  at  least  six  months  previous  to  parole. ^ 

A  recent  New  York  statute  provides  that  the  parole  board  may 
parole  or  discharge  inmates  subject  to  parole  at  any  time,  and  as  of  any 
time  after  the  expiration  of  any  minimum  term,  upon  such  conditions 
not  incompatible  with  the  welfare  of  society  as  they  may  deem  advisable.^ 
The  Ohio  law  provides  that  prisoners  under  sentence  other  than  for 
treason  or  murder  in  the  first  and  second  degree  who  have  served  the 
minimum  term  for  the  crime  of  which  they  are  convicted,  or  a  prisoner 
under  sentence  for  murder  in  the  second  degree  who  has  served  ten 
full  years,  may  be  allowed  to  go  on  parole.'^  Any  person  sentenced  to 
an  indeterminate  sentence  in  Oregon  may  be  paroled  by  the  governor 
upon  his  own  motion,  or  upon  recommendation  of  the  parole  board  as 
follows:  (a)  Any  person  under  twenty  years  of  age  at  the  time  of  the 
commission  of  the  crime  may  be  paroled  at  any  time,  {b)  Any  person 
over  twenty  years  of  age  at  the  time  of  conviction  may  be  paroled  at  any 
time  after  he  has  served  one-fourth  of  the  maximum  term  for  which  he 
was  sentenced,  with  additional  deduction  for  good  time.*    Prisoners  in 

'  Revised  Statutes  of  Nebraska,  1913,  sec.  9160. 

^  Nevada  Revised  Laws,  1912,  sec.  7631. 

3  New  Mexico  Statutes,  1915,  sec.  5083. 

■*  Public  Laws  of  North  Carolina,  191 7,  chap.  278,  sec.  4. 

5  Laws  of  North  Dakota,  1917,  chap.  171,  p.  236. 

*  Laws  of  New  York,  19 19,  chap.  198,  sec.  i. 

1  Laws  of  Ohio,  1917,  p.  527. 

'  General  Laws  of  Oregon,  chap.  150. 


ST  A  NDA  RDIZA  TION  9  5 

Pennsylvania  sentenced  to  definite  terms  prior  to  July  i,  191 1,  are 
eligible  to  parole  after  having  served  one-third  of  their  sentence.'  A 
prisoner  may  be  paroled  in  Rhode  Island  unless  he  is  sentenced  for  life, 
or  is  a  habitual  criminal,  whenever  he  has  served  not  less  than  one-half 
of  the  term  for  which  he  is  sentenced.  A  habitual  criminal  may  be 
paroled  after  having  served  not  less  than  five  years  of  the  twenty-five 
years  he  is  required  to  serve  as  a  habitual  criminal.  A  life-prisoner  may 
be  paroled  after  he  has  served  not  less  than  twenty  years,  but  only  by  a 
unanimous  vote  of  the  Board. ^ 

No  convict  in  South  Dakota,  except  those  serxang  an  indeterminate 
sentence,  can  be  paroled  until  he  has  served  one-half  of  his  sentence.^ 
No  life-termer  in  Tennessee  can  be  paroled  until  he  has  served  twenty- 
five  years,  less  good  time,  had  his  sentence  been  for  twenty-five  years.'' 
Prisoners  in  Virginia  who  have  served  one-half  of  their  term  and  have 
obeyed  the  prison  rules  for  the  preceding  two  years  may  be  paroled. 
Persons  serv-ing  life-sentences  upon  third  conviction  for  larceny  may  be 
paroled  after  having  served  ten  years  of  their  term,  and  persons  serving 
life-sentences  for  other  crimes  may  be  paroled  after  serving  fifteen  years 
of  their  sentence.^  In  West  Virginia  the  governor  may  parole  a  prisoner 
who  has  served  the  minimum  term,  provided  that  he  has  not  previously 
served  two  terms  of  imprisonment  in  any  penal  institution  for  felony, 
and  who  ranks  in  the  first  grade  of  convicts.  No  person  who  cannot 
read,  or  write  a  legible  hand,  unless  more  than  thirty  years  of  age  at  the 
time  of  sentence,  may  be  paroled.^ 

Paroles  may  be  granted  in  Wisconsin  to  those  sentenced  for  less  than 
life  who  have  served  at  least  one-half  of  their  sentence,  not  deducting 
any  time  for  good  behavior;  and  to  those  sentenced  for  life  who  have 
served  thirty  years,  less  diminution  which  would  have  been  allowed  for 
good  conduct  if  the  sentence  had  been  thirty  years.^  No  person  who 
is  sentenced  for  fife  in  Wyoming  is  eligible  for  parole.  This  is  also  true 
of  a  convict  who  makes  an  assault  with  a  deadly  weapon  upon  any 
official  of  the  prison  or  other  convict,  or  of  a  convict  who  has  been 

'  Laws  of  Pennsylvania,  1913,  p.  532,  sec.  i. 

^  Rhode  Island  Session  Laws,  1915,  chap.  1186,  sec.  3. 

J  Session  Laws  of  South  Dakota,  1913,  chap.  287,  p.  485. 

^Thompson's  Shannon's  Code,  1918,  sec.  72ioa-ii. 

5  Virginia  Code,  1904,  sec.  4198a. 

'  West  Virginia  Code,  1913,  sec.  5693.     Rules  Governing  Paroles.     Rules  2  and  9. 

'  Laws  of  Wisconsin,  1919,  sec.  57.06. 


96      TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

returned  from  a  parole  as  a  delinquent,  or  who  has  served  a  previous 
term  in  any  penitentiary.' 

From  this  summary  it  is  evident  that  some  progress  has  been  made 
in  fixing  rules  or  precedents  which  govern  in  part  the  granting  of  paroles. 
Considerable  variation  exists  in  the  practice  that  is  followed  in  the 
different  states,  but  at  least  the  granting  of  parole  is  not  a  matter 
wholly  of  fluctuating  opinion  and  individual  determination  in  those 
states  which  have  adopted  rules  that  are  applied  in  handUng  this  phase 
of  clemency. 

Some  states  prescribe  when  a  person  who  is  on  parole  shall  be 
finally  and  definitely  discharged.  Arkansas,  Idaho,  Kansas,  and 
Nebraska  provide  that  after  a  prisoner  on  parole  has  served  not  less 
than  six  months  of  his  parole  in  a  satisfactory  manner  he  shall  be  ehgible 
for  final  release  or  discharge.  Georgia,  Iowa,  and  Texas  have  a  similar 
provision  except  that  the  minimum  parole  period  is  twelve  months. 
In  Arizona  and  Tennessee  a  prisoner  on  parole  may  be  released  at  any 
time  when  such  final  release  will  not  be  harmful  to  society.  In  Montana 
the  State  Board  of  Prison  Commissioners  may  grant  a  final  discharge 
to  a  person  on  parole  provided  the  period  of  parole  or  probation  shall 
not  be  less  than  the  minimum  or  more  than  the  maximum  term  for  which 
he  may  be  imprisoned.  In  North  Carolina  the  period  of  parole  is  for 
such  a  period  of  time  as  will  fill  out  the  term  of  imprisonment  to  which 
the  prisoner  may  be  sentenced. 

The  Board  of  Prison  Commissioners  in  Maine  determines  the 
length  of  time  a  prisoner  shall  be  on  parole,  which  time  may  be  extended 
or  reduced,  but  which  shall  not  be  more  than  four  years  in  any  case. 
After  a  prisoner  has  faithfully  performed  all  the  obligations  of  his  parole 
for  the  fixed  period  he  is  considered  fully  to  have  served  his  entire 
sentence  and  is  then  finally  discharged.  In  Michigan  a  provision  very 
similar  to  that  in  Maine  is  also  in  force. 

It  has  been  said: 

In  relieving  the  severity  of  the  criminal  law,  the  governor  acts  as  a  sort 
of  criminal  court  of  equity,  although  his  judgments  and  decisions  are  not  yet 
based  on  generally  understood  rules  as  those  of  equity  jurisprudence,  but 
still  rest  largely  upon  his  individual  conscience  or  caprice.  The  practice  of 
different  governors  in  granting  pardons,  therefore,  is  likely  to  vary  just  as  did 
the  measure  of  the  Chancellor's  foot.  Records  of  precedents  and  settled 
rules  for  the  guidance  of  the  executive  are  lacking.^ 

'  Laws  of  Wyoming,  1909,  chap.  84,  sec.  3.  Rules  of  State  Board  of  Pardons 
Relative  to  Parole.     Rule  2. 

'  Mathews,  Principles  of  American  Stale  Administration,  pp.  120-21. 


STANDARDIZATION  97 

This  is  generally  true.  Some  rules  and  precedents  have  been 
estabUshed  which  deal  with  the  preHminaries  and  procedure  of  clemency 
hearings.  This  likewise  appUes  to  "good  time"  allowances,  and  to  the 
exercise  of  the  parole  power.  But  beyond  this  point  very  little  has  been 
done  in  the  way  of  standardization.  In  response  to  an  inquiry,  replies 
received  from  over  75  per  cent  of  the  pardon  authorities  in  the  American 
states  show  that  the  pardoning  power  has  not  been  standardized,  that 
no  systematic  method  has  been  worked  out  as  a  basis  for  granting  or 
refusing  clemency,  that  a  set  of  precedents  has  not  been  estabUshed 
which  is  followed  in  the  consideration  of  each  application  for  clemency, 
that  no  method  for  measuring  the  gravity  of  an  offense  has  been  devised, 
and  that  no  conscious  or  studied  effort  has  been  made  to  prevent  insta- 
bility of  poUcy.  It  is  true  that  a  few  pardon  authorities  stated  that  they 
tried  to  be  consistent,  but  they  followed  no  precedents  or  standards 
"except  in  a  general  way,"  and  that  they  aimed  to  follow  an  intelligent 
method  as  far  as  practicable,  but  none  of  these  practices  were  made  a 
matter  of  record.  The  general  conclusion  that  one  must  draw  from 
these  inquiries  is  that  no  permanent  stability  of  policy  exists,  and 
furthermore,  that  most  of  these  authorities  do  not  even  realize  the 
nature  of  the  problem  involved,  nor  the  need  for  a  consistent  pohcy. 

In  Illinois,  where  the  superintendent  of  the  Division  of  Pardons  and 
Paroles  and  the  superintendent  of  prisons  have  long  been  engaged  in 
this  type  of  work,  it  appears  that  they  have  built  up  a  system  for  granting 
clemency  which  is  consistent  and  displays  uniformity.  But  the  prece- 
dents developed  rest  largely  in  the  memories  of  the  members  of  the  Board 
rather  than  in  the  form  of  stare  decisis  decisions.  A  new  Board  would 
be  entirely  free  to  follow  its  own  ideas  and  opinions,  and  probably 
would  find  it  necessary  to  do  so. 

A  detailed  personal  study  of  this  problem  in  a  group  of  western 
states — Nevada,  California,  Oregon,  Idaho,  Utah,  Colorado,  and  Wyom- 
ing— but  verifies  more  strongly  the  general  conclusions  that  have  been 
stated. 

In  Nevada  the  governor,  submitting  to  the  legislature  the  action, 
of  the  State  Board  of  Pardons  in  granting  clemency,  is  not  required  to 
give  the  reasons  in  each  case  for  such  clemency.  It  is  therefore  impossible 
to  examine  the  written  reasons  in  order  to  see  if  they  are  consistent  and 
accQrding  to  precedent.  Information  must  therefore  be  gathered  from 
the  members  of  the  Board  of  Pardons.  The  governor's  secretary,  who 
is  also  the  secretary  of  the  Pardon  Board,  says  that  the  only  rules 
observed  are:    (a)  no  parole  is  granted  unless  the  minimum  term  has 


98      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

been  served,  and  (b)  pardons  are  granted  only  in  exceptional  cases 
unless  a  parole  has  first  been  served.  The  secretary  makes  no  effort 
to  call  the  attention  of  the  Board  members  to  their  action  in  similar 
cases  for  the  reason  that  they  do  not  want  to  follow  precedent.  The 
vote  of  each  member  is  made  public  in  every  case  of  clemency  granted 
and  therefore  the  members,  who  all  hold  elective  positions,  are  inclined 
to  shape  their  action  so  as  to  gain  public  approval. 

This  view  is  substantiated  by  the  governor,  who  is  the  president 
of  the  Board.  He  insists  that  there  is  no  consistency  on  the  part  of  the 
Board  members  in  voting.  He  says  it  would  be  very  interesting  to  see 
how  much  diversity  exists  on  the  part  of  the  same  member  in  similar 
cases.  Such  a  member  often  votes  directly  opposite  to  what  he  has  done 
in  a  previous  case  of  a  similar  character.  For  this  reason  the  governor 
favors  secret  voting,  instead  of  having  each  vote  made  a  matter  of  public 
record  as  is  now  the  case,  because  it  will  encourage  greater  freedom  of 
action.  He  likewise  favors  an  appointive  Board  because  it  will  be  less 
inclined  to  listen  to  popular  feeling  in  order  to  secure  political  favor. 
The  governor  strongly  favors  the  standardization  of  the  pardoning  power 
and  the  establishment  of  precedents  to  be  followed  in  considering 
clemency.  He  also  believes  that  some  system  should  be  evolved  for 
measuring  the  gravity  of  an  offense.  No  such  methods  now  prevail  in 
Nevada.  He  has  brought  this  entire  problem  before  the  Pardon  Board, 
which  has  expressed  a  willingness  to  consider  the  matter,  but  the  Board 
has  intimated  that  it  has  Uttle  confidence  in  such  a  scheme  for  deaUng 
with  clemency. 

It  is  admitted  that  the  pardoning  power  has  not  been  definitely 
standardized  in  California,  but  a  member  of  the  Advisory  Pardon  Board 
says  the  Board  aims  to  be  consistent  in  its  action.  A  set  of  precedents 
has  not  been  established  as  in  law  (stare  decisis)  since  it  is  felt  that 
this  is  not  wholly  possible.  The  Board  sometimes  recommends  clemency 
because  of  the  too  great  severity  of  the  sentence,  because  of  the  discovery 
of  new  evidence,  because  of  extenuating  circumstances,  because  of  a 
helpless  and  dependent  wife  and  children,  because  of  the  illness  of  the 
prisoner,  etc.  But  the  Board  tries  to  be  consistent  in  taking  all  these 
things  into  consideration.  Sometimes  the  Board  refers  to  past  cases  and 
recommendations  in  reaching  conclusions  in  new  cases.  But  further 
than  this  nothing  has  been  done  in  the  way  of  establishing  and  following 
precedents.     The  secretary  of  the  Board  confirms  these  conclusions. 

The  private  secretary  of  the  governor  says  that  no  effort  has  been 
made  in  the  executive  office  to  establish  precedents  and  to  standardize 


STANDARDIZATION  99 

the  pardoning  power.  This  view  is  also  held  by  the  state  parole  officer. 
An  examination  of  hundreds  of  cases  in  which  clemency  was  granted, 
covering  a  period  of  eight  and  one-half  years,  shows  that  there  was  no 
dehberate  or  conscious  effort  on  the  part  of  the  chief  executive  to  follow 
a  standard.  The  reasons  for  granting  clemency  in  each  case  contain 
no  reference  to  similarity  of  action  in  other  like  cases.  Each  case  seems 
to  be  treated  entirely  on  its  own  merits,  separate  and  distinct  from  other 
appeals  for  clemency.  No  influence  of  a  co-ordinating  character  is 
apparent  in  the  governor's  actions  in  these  matters.  The  state  constitu- 
tion provides,  however,  that  neither  the  governor  nor  legislature  can 
grant  a  pardon  or  commutation  in  any  case  where  the  convict  has  been 
twice  convicted  of  a  felony  except  upon  the  recommendation  in  writing 
of  a  majority  of  the  Supreme  Court. ^ 

The  pardoning  power  in  Oregon  is  not  standardized.  No  systematic 
method  is  followed  in  granting  clemency.  Precedents  have  not  been 
estabhshed.  Each  case  is  decided  on  its  own  merits.  No  effort  has 
been  made  to  prevent  instabiUty  of  action  by  the  pardoning  authorities. 
These  statements  are  all  agreed  to  by  the  governor's  secretary,  by  the 
state  parole  officer,  by  the  superintendent  of  the  state  prison,  all  of  whom 
are  members  of  the  Parole  Board,  and  by  the  secretary  of  this  Board. 

A  study  of  the  reasons  given  for  granting  clemency  in  some  1,257 
cases  during  the  period  from  February  2,  191 1,  to  July  15,  19 19,  during 
the  administrations  of  Governors  West,  Withycombe,  and  Olcott,  com- 
pletely verifies  these  statements.  Not  only  is  there  no  consistency  in 
the  exercise  of  clemency,  but  occasionally  the  reasons  for  granting  it 
are  trivial  and  unworthy  of  consideration.  Thus  in  one  case  where  a 
person  was  sentenced  to  be  hanged  for  murder,  the  wife  and  daughter 
pleaded  that  they  did  not  want  him  hanged  because  it  would  do  him 
no  good.  The  governor  agreed  with  this  statement  and  therefore  com- 
muted his  sentence.  One  pardon  of  a  person  convicted  of  obtaining 
money  under  false  pretenses  was  granted  "because  the  prisoner  is  about 
to  be  married."  One  notices  in  the  records  such  reasons  for  granting 
pardons  as  the  following:  "the  ends  of  justice  have  been  met,"  "the 
prisoner  is  pardoned  for  the  betterment  of  society,"  "he  has  been 
punished  sufficiently,"  "he  has  learned  his  lesson,"  "he  should  have  a 
chance  to  make  a  new  start  in  Ufe,"  "he  better  be  supporting  himself 
instead  of  the  state  doing  it."  During  the  recent  war  a  number  of 
convicts  were  pardoned  so  that  they  might  enlist  in  the  army  or  navy, 
or  work  in  the  shipyards  or  in  the  lumber  industry. 

'  Constitution  of  California,  Art.  7,  sec.  i. 


lOO     TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

No  standardization  exists  in  Idaho.  No  precedents  prevail.  These 
statements  are  made  by  the  secretary  of  the  State  Board  of  Pardons,  by 
the  governor's  secretary,  and  by  the  warden  of  the  state  prison.  An 
examination  of  all  cases  of  clemency  granted  by  the  Pardon  Board 
since  its  first  session,  April  i,  1891,  confirm  these  statements.  Occasion- 
ally the  reasons  for  granting  clemency  are  trivial,  and  sometimes  no 
reasons  for  such  action  are  given,  although  the  giving  of  reasons  is  a 
constitutional  requirement.  Also  in  some  cases  the  offense  for  which 
clemency  is  granted  is  not  stated  in  the  record. 

It  is  likewise  stated  in  Utah  that  the  pardoning  power  has  not  been 
put  upon  a  standardized  basis  with  a  set  of  governing  precedents.  These 
statements  are  volunteered  by  a  former  governor  who  was  president  of 
the  Board  of  Pardons  for  eight  years,  by  two  members  of  the  Supreme 
Court  who  have  served  on  the  Board  for  several  years,  by  the  attorney- 
general  who  is  the  secretary  of  the  Board  of  Pardons,  by  the  warden  of 
the  state  prison,  and  by  the  secretary  of  state,  who  sits  on  the  Board 
when  he  is  acting  governor  of  the  state.  A  study  of  the  records  of  the 
Pardon  Board  since  statehood  (1896)  verifies  this  conclusion.  Very 
brief  reasons  are  given  for  granting  pardons  and  commutations,  and  no 
reasons  are  offered  for  granting  paroles  and  termination  of  sentence. 

The  pardoning  power  is  not  standardized  in  Colorado.  PoUcy  has 
fluctuated  according  to  the  disposition  of  the  Pardon  Board  and  the 
governor.  The  secretary  of  the  Board  states,  however,  that  for  about 
ten  years  the  Board  has  held  quite  firmly  to  the  practice  of  not  granting 
a  pardon  unless  it  was  shown  that  the  appUcant  was  not  guilty  of  the 
crime  for  which  he  was  competed.  It  also  seems  that  the  condition  of  a 
prisoner's  family  is  not  usually  considered  in  the  determination  of  grant- 
ing or  refusing  clemency.  The  Pardon  Board  in  Colorado  is  merely  an 
advisory  one,  and  so  the  final  disposition  of  clemency  is  vested  in  the 
governor.  There  is  no  evidence  in  the  record  that  he  follows  a  set  of 
precedents,  and  this  view  is  borne  out  by  his  secretary  and  the  warden 
of  the  state  prison.  A  study  of  the  cases  of  clemency  granted  by 
governors  from  1907  to  1919  shows  that  this  conclusion  is  a  correct  one. 

What  has  been  said  in  regard  to  Colorado  may  also  be  said  about 
Wyoming.  The  work  of  the  Board  of  Pardons  is  not  standardized  and 
a  set  of  precedents  has  not  been  developed,  according  to  the  secretary  of 
the  Board.  This  Board  is  advisory  in  its  nature  and  the  governor  makes 
the  final  decision  in  clemency  matters.  The  records  of  his  action  since 
191 1  do  not  indicate  that  he  has  consciously  followed  precedent  in  the 
exercise  of  clemency. 


c 

STANDARDIZATION  lOi 

The  conclusions  derived  from  this  summary  are  that  throughout  the 
American  states  in  general  the  pardoning  power  has  not  been  standard- 
ized, that  a  systematic  method  has  not  been  evolved  to  be  used  as  a  basis 
for  granting  or  refusing  clemency,  that  a  set  of  precedents  has  not  been 
estabUshed  which  is  followed  in  the  consideration  of  each  appHcation 
for  clemency,  that  a  method  for  measuring  the  gravity  of  an  offense 
has  not  been  worked  out,  and  that  no  serious  effort  has  been  made  to 
prevent  instabiUty  of  poUcy  in  clemency  matters. 

This  condition  is  probably  due  in  the  first  place  to  a  lack  of  effort 
to  estabhsh  a  uniform  policy.  The  pardoning  power  is  generally  looked 
upon  as  one  in  which  there  should  be  a  free  exercise  of  discretion. 
When  justice  has  miscarried  in  the  other  branches  of  government  the 
pardoning  power,  it  is  felt,  should  be  absolutely  untrammeled  in  order 
that  it  may  insure  justice.  This  is  one  reason  why  opposition  exists  to 
the  estabUshment  of  standards  and  precedents  which  might  curb  and 
restrict  the  free  and  just  administration  of  clemency. 

A  feeling  also  exists  on  the  part  of  many  pardon  authorities  that  it 
is  impossible  to  develop  rules  and  standards  which  can  be  of  general 
application.  Each  case,  it  is  asserted,  must  be  determined  solely  on  its 
merits.  This  thought  is  well  expressed  by  the  secretary  of  the  State 
Board  of  Pardons  of  Indiana  who  says,  "No  precedents  have  been 
estabUshed  or  followed  in  our  work ;  each  case  must  be  considered  on  its 
own  merits."  Likewise  one  of  the  members  of  the  Prison  Commission 
of  Georgia  writes:  "Since  grants  of  clemency  are  necessarily  made  in 
the  exercise  of  discretion  there  can  be  no  fixed  precedents,  for  they  are 
exceptions  to  the  rules  of  law."  The  director  of  the  Legislative  Reference 
Bureau  of  Virginia  says:  "Each  case  stands  on  its  own  merits.  Practi- 
cally no  two  cases  are  the  same.  The  granting  of  clemency  or  mercy  is 
not,  and  should  not  be,  controlled  by  precedents." 

A  former  governor  of  Utah  who  was  president  of  the  Board  of 
Pardons  says  it  is  impossible  to  standardize  the  pardoning  power,  and 
this  view  is  also  held  by  two  justices  of  the  Supreme  Court  who  are 
members  of  the  Pardon  Board  in  that  state,  and  by  the  warden  of  the 
state  prison.  They  all  assert  that  it  is  impossible  to  follow  precedent 
because  so  much  depends  upon  the  individual  characteristics  and 
temperament  of  each  prisoner,  and  on  the  circimistances  surrounding  the 
commission  of  each  crime. 

Many  similar  views  have  been  expressed,  but  perhaps  one  of  the 
strongest  opponents  of  the  view  that  the  pardoning  power  can  be 
standardized  and  subjected  to  precedent  is  the  pardon  attorney  in  the 


I02      THE  PARDONING  POWER  IN  TEE  AMERICAN  STATES 

United  States  Department  of  Justice.  He  frankly  confesses  that  he 
does  not  know  what  is  meant  by  the  standardization  of  this  power. 
He  says  that  precedents  are  known  in  the  national  system  but  there  is 
no  foot-of-rule  guide  or  yardstick  by  which  applications  for  pardons  are 
measured  and  granted  or  denied.  An  inquiry  of  this  nature,  he  insists, 
shows  a  lack  of  comprehension  of  the  proper  functions  of  the  pardoning 
power.  He  also  holds  that  an  attempt  to  evolve  a  method  for  measuring 
the  gravity  of  an  offense  is  fooUsh  because  the  pardoning  function  is 
not  a  machine  nor  can  it  ever  be  made  one.  Finally,  on  the  question  of 
preventing  instability  of  poUcy  in  granting  clemency,  he  expresses 
himself  to  the  effect  that  such  a  view  is  also  foolish,  for  the  attempt  to 
apply  information  or  standards  which  might  be  practicable  in  some  Hnes, 
is  wholly  impracticable  and  impossible  of  appUcation  to  pardon  cases. 

If  these  views  are  correct  then  nothing  remains  to  be  done  except 
to  continue  to  follow  our  present  methods  of  administering  clemency. 
This  assumes  that  these  methods  are  as  near  perfect  as  they  can  be  made. 
It  also  assumes  that  individual  judgment,  without  resort  to  standards 
or  precedents,  is  best  able  to  approximate  justice.  It  means  that  in  spite 
of  the  shifting  personnel  of  governors  and  boards,  with  a  corresponding 
change  in  individual  viewpoint,  in  spite  of  caprice,  prejudice,  bias, 
susceptibiUty  to  influence,  undue  sympathy,  and  other  elements  in 
man's  environment,  pardon  authorities  shall  be  allowed  unlimited 
discretion  because  they  are  deahng  with  a  subject  that  can  be  disposed 
of  in  this  manner  only,  and  therefore  justice  demands  that  they  shall 
not  be  circumscribed  in  their  activity. 

But  all  students  of  this  problem  are  not  agreed  with  this  point  of 
view.     One  writes  as  follows: 

The  writer  of  this  letter  has  been  private  secretary  in  the  governor's  office 

in for  the  past  ten  years,  and  during  that  time  has  had  considerable  to 

do  with  many  applications  for  pardon,  both  those  coming  to  the  Board  of 
Pardons  and  to  the  governor  direct. 

My  observation  brings  me  always  to  the  same  conclusion — that  there  is 
need  of  a  change  from  the  old  hit-and-miss  policy  which  is  pursued  in  this  and 

many  other  states I  am  not  an  idealist  but  I  do  feel  the  necessity  of 

a  change  in  this  state  in  the  manner  of  taking  action  on  pardon  applications. 

Another  student  of  this  problem  has  said: 

There  is  no  doubt  that  decision  (in  clemency  cases)  is  capable  of  being 
rendered  upon  precise  and  unassailable  grounds,  since  clemency  is  a  definite 
jurisdiction  with  guiding  rules  productive  of  rational  and  just  results  from  all 
standpoints.' 

'  W.  W.  Smithers,  "Use  of  the  Pardoning  Power,"  Annals  of  the  American 
Academy  oj  Political  and  Social  Science,  LII,  63. 


STANDARDIZATION  103 

A  leading  student  of  criminal  law  writes: 

Pardoning  officers  should  proceed  by  rule,  as  do  the  judges  in  the  exercise 
of  judicial  functions.  Technically,  the  power  of  pardon  is  termed  discretion- 
ary; so  are  a  large  part  of  the  powers  exercised  by  the  courts.  With  a  court, 
for  instance,  it  is  discretionary  whether  to  try  a  cause  when  it  is  reached  on 
the  calendar,  or  to  continue  it.  Yet  this  discretion  should  be  exercised  on 
public  considerations,  and  according  to  rule,  not  from  mere  private  impulses  or 
views.  And  a  judge  who  should  continue  causes  or  bring  them  on  for  trial, 
as  personal  motives  impelled,  to  the  injury  of  suitors,  would  be  guilty  of  mis- 
demeanor in  ofitice.  The  same  should  apply  if  executives  acted  on  private 
views  in  granting  or  withholding  pardons.' 

Even  if  it  were  admitted  that  the  pardoning  power  does  not  lend 
itself  to  systematic  administration  to  the  extent  that  has  been  contended 
for,  the  statement  of  Professor  Freund  relative  to  the  observance  of  a 
definite  method  in  reaching  determinations  is  germane  to  the  problem. 

In  matters  not  susceptible  of  scientific  demonstration,  when  either  of  two 
different  solutions  of  a  problem  can  equally  claim  to  be  reasonable,  arbitrariness 
in  reaching  conclusions  can  be  best  avoided  by  adherence  to  intelligible  and 
settled  methods  which  insure  a  reasonably  constant  relation  between  determina- 
tions on  cognate  matters,  each  of  which  taken  by  itself  must  be  the  result  of 
compromise  or  of  free  choice.  This  satisfies  at  least  the  strong  and  universal 
demand  for  order  and  proportion ^ 

The  fact  also  remains  that  pardon  authorities  do  not  enjoy  the 
same  degree  of  discretion  in  all  matters  touching  clemency  that  they 
formerly  did.  A  study  of  pardon  legislation  in  the  United  States  shows 
that  an  increasing  number  of  restrictions  have  been  imposed  upon 
pardon  authorities  in  the  form  of  constitutional  and  statutory  provisions. 
It  would  not  be  contrary,  therefore,  to  American  tendencies  still  further 
to  curtail  their  discretionary  powers  if  by  so  doing  further  improvement 
could  be  introduced  into  our  pardon  system. 

Such  an  evolution  in  regard  to  standardization,  establishment  of 
precedents,  measuring  the  degree  of  criminaUty  of  offenses,  and  formulat- 
ing a  stable  policy  must  be  somewhat  gradual  in  each  jurisdiction. 
One  could  not  hope  to  formulate  such  a  system  and  superimpose  it 
upon  any  jurisdiction  with  any  assurance  that  it  would  be  successful. 
Just  as  our  system  of  equity  jurisprudence,  with  its  aim  of  greater  justice, 
was  a  gradual  development,  so  must  a  systematized  plan  for  administer- 
ing clemency  develop  and  estabUsh  its  own  precedents  in  each  state. 
The  aim  of  any  such  plan  must  be  to  advance  certainty,  stability,  and 
uniformity,  and  in  so  doing  insure  the  greatest  degree  of  justice. 

*  Bishop,  Criminal  Law,  7th  ed.,  sec.  925.  '  Freund,  op.  cit.,  pp.  255-56. 


I04     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Certain  suggestive  principles  may  contribute  toward  the  develop- 
ment of  such  a  constructive  system  of  clemency. 

A  pardoning  authority  should  be  guided  solely  by  motives  of  pubUc 
consideration.  No  private  motive  or  view  should  influence  action  in 
matters  of  clemency.  A  personal  desire  to  see  a  prisoner  punished  or 
liberated  should  be  absent  from  the  mind  of  every  official  called  to 
occupy  such  a  position.  And  yet  in  19 13  the  governor  of  Oklahoma 
used  his  clemency  power  to  thwart  the  enforcement  of  legislation. 
He  took  the  position  that  the  legal  execution  of  the  death  penalty  was 
judicial  murder  and  therefore  he  refused  to  permit  this  sentence  to  be 
carried  into  effect  on  the  ground  that  he  would  become  a  party  thereto.^ 

Clemency  should  be  exercised  only  when  in  obedience  to  a  rational  inter- 
pretation of  common  public  sentiment  the  case  by  reason  of  natural  equity 
raises  a  presumption  that  it  was  intended  to  be  excepted  out  of  the  general 
terms  of  the  punishing  statute.^ 

A  person  who  appHes  for  clemency  should  be  presumed  to  be  guilty 
by  the  clemency  authorities.  When  a  person  is  on  trial  before  a  court 
he  is  entitled  to  all  reasonable  doubt  and  is  presumed  to  be  innocent  until 
he  is  proved  guilty.  But  this  rule  should  be  reversed  when  his  case  is 
presented  for  executive  clemency.  The  presumption  is  that  he  has  had 
a  fair  trial  and  a  just  sentence.  The  burden  of  proof  in  showing  otherwise 
should  rest  upon  him. 

Pardon  authorities  should  not  interfere  to  correct  mere  errors  of  law 
which  may  be  remedied  by  an  appellate  court.  AppHcations  for  clem- 
ency should  not  be  considered  until  the  final  determination  of  a  criminal 
case  by  the  courts.  Findings  by  the  jury  upon  disputed  questions  of 
fact  should  usually  be  regarded  as  conclusive.  Newly  discovered 
evidence  of  the  innocence  of  a  prisoner  should  be  accepted,  if  relief 
based  upon  it  cannot  be  secured  in  a  court.  Consideration  should  be 
given  to  cases  in  which  conviction  was  had  in  part  because  of  the  rigidity 
of  criminal  procedure,  false  evidence,  perjured  testimony,  or  weakness  of 
circumstantial  evidence. 

It  should  not  be  the  province  of  pardon  authorities  to  attempt  to 
rectify  what  may  be  regarded  as  an  error  in  the  original  trial.  This 
should  be  left  for  an  appelate  court. 

Where  real  doubt  of  constitutionality  has  been  judicially  expressed  either 
in  some  similar  case  or  by  a  dissenting  opinion,  although  not  sufficient  by  that 

'  Henry  v.  State,  10  Okla.  Criin.  Rep.  369. 

^  Smithers  and  Thorn,  Executive  Clemency  in  Pennsylvania,  p.  112. 


ST  AN  DA  RDIZA  TION  105 

fact  alone,  it  may  be  treated  as  a  favorable  circumstance  when  the  application 
is  accompanied  by  other  merciful  features.' 

The  recommendations  of  the  trial  judge  and  the  prosecuting  attorney 
should  carry  considerable  weight,  and  it  might  be  well,  through  statutory 
enactment,  to  require  that  immediately  after  conviction  in  each  case  of 
felony  the  opinions  and  recommendations  of  these  officials  be  transmitted 
to  the  pardon  authorities  and  filed  for  future  reference. 

There  is  also  a  class  of  statutes  which  have  been  intemperately  passed  to 
render  more  severe  the  existing  penalty  for  some  well-defined  criminal  act. 
They  are  usually  the  outcome  of  public  indignation  aroused  by  the  crime  in 
question  having  been  committed  in  a  single  instance  with  revolting  details  or 
circumstances  of  especial  aggravation.  After  subsidence  of  the  popular  wave 
the  new  penalty  is  recognized  as  unreasonably  severe.* 

If  no  latitude  exists  in  imposing  sentence  for  such  a  crime  it  is  possible 
that  a  person  guilty  of  the  offense,  but  without  the  revolting  details,  has 
been  too  harshly  dealt  with.  Under  such  circumstances  a  commutation 
of  sentence  could  well  be  considered  by  pardoning  authorities. 

There  are  also  some  recent  laws  which  are  repugnant  to  the  public  sense 
of  right  because  they  declare  certain  actions  to  be  crimes  irrespective  of  criminal 
knowledge  or  wrongful  intent.  These  are  opposed  to  the  traditions  of  the 
criminal  law  and  the  common  understanding  of  the  people  although  occasion- 
ally upheld  by  modern  judicial  interpretation.^ 

Where  the  commission  of  such  acts  do  not  involve  moral  turpitude, 
and  they  are  committed  in  ignorance  of  the  law,  leniency  should  be 
shown  if  the  court,  with  a  knowledge  of  these  conditions,  was  unable 
to  grant  relief. 

At  times  offenses  are  committed  under  extenuating  circumstances, 
under  extraordinary  provocation,  or  in  the  belief  that  they  are  justified 
on  high  moral  or  reUgious  grounds.  But  such  occurrences  can  properly 
be  explained  at  the  time  of  trial,  and  should  be  brought  to  the  attention 
of  clemency  authorities  under  extraordinary  circumstances  only.  Clem- 
ency may  sometimes  be  extended  on  the  grounds  of  public  poUcy. 
Such  action  may  be  in  recognition  of  courtesies  due  to  other  state 
executives,  in  order  to  allow  a  prisoner  to  be  tried  for  a  more  serious 
offense  in  some  other  jurisdiction,  or  to  secure  a  witness  who  will  turn 
state  evidence,  and  for  other  like  reasons. 

Caution  should  be  used  in  pardoning  or  releasing  prisoners  on  the 
ground  of  poor  health  or  serious  illness.     Some  abuse  has  resulted  from 

'  Smithers  and  Thorn,  op.  cil.,  pp.  116-17.        "  Ibid.,  p.  117.        ^  Ibid.,  p.  116. 


io6     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

this  practice.  But  there  are  occasions  when  a  prisoner  with  an  incurable 
disease  is  a  direct  menace  to  the  heahh  and  safety  of  other  prisoners  who 
hve  in  close  quarters.  If  no  other  method  of  solving  such  a  situation 
exists  it  may  be  an  act  of  mercy  to  others  as  well  as  to  the  individual 
applicant  to  grant  clemency  in  some  form  in  such  a  case. 

Juries  should  not  be  encouraged  to  find  prisoners  guilty  and  then 
recommend  them  to  the  mercy  of  the  court,  or  trust  that  the  clemency 
authority  will  grant  leniency.  Jurors  should  face  the  problem  squarely. 
A  recommendation  to  mercy  merely  stimulates  petitions  for  clemency. 
Except  upon  the  allegation  of  entire  innocence  clemency  appeals  should 
not  be  considered  where  a  short  sentence  has  been  imposed.  Otherwise 
pardon  authorities  are  burdened  with  a  multiplicity  of  applications 
which  tends  to  prevent  careful  consideration  of  each  case.  For  the  same 
reason  rehearings  should  not  b;  allowed  too  often,  and  then  for  some 
new  and  substantia'  reason  only. 

Even  if  an  appHcation  for  clemency  is  otherwise  meritorious  no 
favorable  action  should  be  taken  if  the  applicant's  prison  conduct  has 
been  bad.  The  preservation  of  effective  prison  discipline  is  essential 
and  therefore  compliance  with  prison  regulations  should  be  made  a 
qualification  for  clemency. 

Studies  in  criminology  and  penology  have  thrown  much  new  light 
and  information  upon  the  criminal  classes.  This  knowledge  should 
not  be  neglected  in  an  effort  to  systematize  the  pardoning  system. 
More  is  now  known  about  different  types  than  formerly.  Criminals 
who  have  been  classified  as  (a)  accidental,  {b)  eccentric,  (c)  insane, 
{d)  moral  imbecile,  {e)  instinctive,  (/)  criminals  by  acquired  habit,  {g) 
criminals  by  passion,  {h)  criminals  by  occasion^  (other  classifications 
have  also  been  made),  must  obviously  be  handled  in  various  ways,  but 
this  does  not  mean  a  lack  of  system.  It  means  the  development  of  a 
system  with  more  scientific  application  and  individualization  of  punish- 
ment. It  means  the  application  of  that  system  to  the  criminal  rather 
than  to  the  crime  as  has  too  often  been  the  case  in  the  past.  The  new 
sciences  of  psychology  and  psychiatry  should  be  valuable  aids  in  the 
realization  of  this  end,  for  pardon  authorities  must  deal  with  the  abnormal 
and  subnormal  as  well  as  with  the  normal  criminal.  Provisions  must 
also  be  made  to  apply  the  rational  principles  thus  developed  to  the 
prisoners  who  were  incarcerated  several  years  ago  under  the  old  criminal 
laws.  And  since  the  chief  aims  of  imprisonment  and  punishment  are 
the  protection  of  society  and  the  reform  of  the  criminal  when  that  is 

'  Henderson,  Dependents,  Defectives,  and  Delinquents,  pp.  219-24. 


STANDARDIZATION  107 

possible,  an  effort  should  be  made  through  an  adequate  parole  system 
to  rehabilitate  those  persons  who  can  again  be  returned  to  society  so 
that  they  may  once  again  function  usefully  with  their  fellows. 

But  the  application  of  a  system  of  clemency  to  the  individual  involves 
also  a  more  systematic  study  of  crimes  and  penalties.  Not  only  must 
there  be  a  co-ordination  of  penalties  as  between  crimes,  but  a  more 
scientific  differentiation  of  degrees  of  crime.  A  method  should  be 
developed  for  measuring  the  gravity  of  an  offense.  This  might  be  based 
in  part  on  the  value  of  the  interest  affected,  on  criteria  relating  to  the 
offender,  and  on  circumstances  connected  with  the  commission  of  the 
offense. 

But  a  standardized  system  with  scientific  application  of  the  same  to 
each  individual  case  involves  one  additiona  need.  The  pardoning 
authority  must  be  competent,  trained,  and  expert  Most  of  our  pardon- 
ing officials  today  are  not  specially  prepared  and  trained  for  this  duty. 
In  many  instances  pardon  boards  and  commissions  are  composed  of 
state  officials  holding  other  pohtical  positions.  Most  of  their  time  and 
attention  are  given  to  other  duties.  Serving  on  clemency  boards  is 
a  subsidiary  duty.  Little  time  and  thought  are  given  to  clemency 
matters. 

Likewise  governors  are  not  specially  fitted  to  be  the  final  arbiters 
of  clemency  as  they  are  in  many  states.  They  are  elected  on  other 
issues.  Many  of  them,  prior  to  their  election,  have  given  no  serious 
thought  to  the  problem  of  clemency.  At  best  they  can  but  hope  to 
use  good  average  judgment  when  they  are  called  upon  to  deal  with  this 
question.  They  bring  with  them  no  expert  knowledge  or  training  to 
aid  in  its  solution.  Therefore  they  are  handicapped  from  their  first 
entry  into  office.  But  this  is  not  all.  The  chief  executives  in  American 
states  can  give  less  attention  to  this  matter  today  than  they  could 
formerly.  The  social,  industrial,  and  economic  development  within  each 
state  has  become  so  intricate  that  governors  are  confronted  with  more 
numerous  and  complex  administrative  problems  than  ever  before.  The 
greater  part  of  their  time  must  be  given  to  these  duties.  They  do  not 
and  cannot  give  that  degree  of  attention  to  clemency  which  this  sul)ject 
demands  and  should  have.  This  becomes  increasingly  apparent  when 
it  is  recalled  that  the  population  of  each  state  is  growing.  This  growth 
in  connection  with  a  more  complex  social  environment  results  also  in 
an  increased  criminal  population.  This  means  therefore  that  the  task 
of  administering  clemency  is  growing,  and  the  time  which  a  governor 
has  to  devote  to  this  duty  is  becoming  less.     Evidently  the  present 


io8     TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

organization  of  the  pardoning  authority  in  most  American  states  is 
poorly  adapted  to  the  increased  responsibilities  it  is  called  to  meet. 

A  board  composed  of  competent  members  whose  full  time  is  given 
to  the  state  would  seem  to  offer  the  best  solution.  Such  a  board  might 
consist  of  a  superintendent  of  pardons  and  paroles,  a  superintendent  of 
state  prisons  (or  if  a  state  has  but  one  prison,  then  the  warden  of  such 
prison),  the  chief  parole  agent  of  the  state,  a  competent  criminologist, 
and  a  skilled  alienist.  Its  tenure  should  be  permanent.  None  of  the 
members  should  be  pohtical  appointees.  The  powers  of  the  board  should 
be  inclusive.  Its  conclusions  should  be  final — not  advisory.  The 
governor  should  be  relieved  of  the  entire  problem  of  the  administration 
of  clemency  and  this  work  in  its  entirety  should  be  given  into  the  hands 
of  such  a  trained  body  with  final  powers  of  determination. 

It  will  probably  be  contended  that  such  an  organization  is  desirable 
in  a  rich  and  populous  state,  but  that  a  state  with  Umited  financial 
resources  cannot  afford  to  employ  experts  for  this  purpose,  especially 
since,  in  some  instances,  the  work  of  the  pardon  board  would  not  require 
their  entire  time.  But  these  experts  could  also  be  used  to  excellent 
advantage  in  other  branches  of  the  public  welfare  service.  If  their 
efforts  were  devoted  to  the  more  scientific  administration  of  state 
mental  hospitals,  boys'  and  girls'  reformatories,  county  jails  and  other 
penal  institutions,  and  in  other  fields  of  social  welfare  work  an  outlet 
could  be  found  for  their  surplus  time. 

With  such  a  reorganization  of  the  clemency  power  it  is  almost 
needless  to  point  ou.  that  a  permanent  secretary  should  be  provided, 
and  that  a  comprehensive  and  consistent  method  of  preparing  and  filing 
clemency  records  should  be  developed.  Such  records  and  statistics 
would  be  of  great  value  in  helping  to  establish  precedents  and  in  furnish- 
ing information  for  future  scientific  legislation. 

Such  a  reorganization  of  the  clemency  authority  would  not  mean 
necessarily  a  curtailment  of  clemency.  Indeed  it  is  difficult  to  say  that 
the  pardoning  power  has  been  too  freely  exercised  in  general.  Governors 
Seymour,  Tilden,  Robinson,  Fenton,  Cleveland,  and  Hill  of  New  York 
were  all  of  the  opinion  that  they  had  not  exercised  it  freely  enough.^ 
It  would  mean  a  more  scientific  and  efficient  administration  of  clemency 
with  greater  exactness  and  justice  than  under  our  present  methods. 

Finally,  some  problems  of  clemency  which  now  come  before 
pardon  authorities  shou  d  be  disposed  of  before  they  ever  reach  that 
stage.     Some  of  these  agencies  should  be  made  use  of  in  our  judicial 

'  David  B.  Hill,  "The  Pardoning  Power,"  North  Aynerican  Review,  CLIV,  62. 


STANDARDIZATION  109 

system.  New  York  has  recently  enacted  a  statute  that  extends  the 
judicial  discretion  to  suspend  sentence  or  put  on  probation  in  every 
case  of  crime  except  murder,  irrespective  of  whether  the  defendant  is 
a  new  offender  or  an  old  one.  Some  other  states  such  as  Kansas  have 
also  partially  done  this.  If  adequate  methods  can  be  introduced  into 
our  judicial  system  which  will  accurately  aid  in  the  determination  of  the 
degree  and  kind  of  treatment  or  punishment  to  be  imposed  on  each  guilty 
defendant,  a  considerable  advance  will  have  been  made  in  the  perplexing 
problem  of  adequate  and  just  punishment. 


CHAPTER  VII 
SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER 

THE   NATURE   OF   A   PARDON 

Blackstone  has  said  that 

The  effect  of  a  pardon  (under  the  rules  of  the  common  law)  is  to  make  the 
offender  a  new  man;  to  acquit  him  of  all  corporal  penalties  and  forfeitures 
annexed  to  that  offense  for  which  he  obtains  a  pardon;  it  gives  him  a  new 
credit  and  capacity;  and  the  pardon  of  treason  or  felony,  even  after  conviction 
or  attainder,  will  enable  a  man  to  have  an  action  of  slander  for  calling  him  a 
traitor  or  felon.' 

The  Supreme  Court  of  the  United  States  has  also  said  that 

A  pardon  reached  both  the  punishment  prescribed  for  the  offense  and  the 

guilt  of  the  offender It  releases  the  punishment  and  blots  out  of 

existence  the  guilt,  so  that  in  the  eye  of  the  law  the  offender  is  as  innocent  as 

if  he  had  never  committed  the  offense It  removes  the  penalties  and 

disabilities,  and  restores  him  to  all  his  civil  rights.     It  makes  him,  as  it  were, 
a  new  man,  and  gives  him  a  new  credit  and  capacity.^ 

Is  a  pardon  the  remission  of  guilt,  or  the  remission  of  the  punishment 
of  guilt?  The  view  of  the  Supreme  Court  as  expressed  in  the  case  of 
Ex  parte  Garland  seems  to  hold  that  the  consequences  of  a  pardon 
involve  the  remission  of  both  guilt  and  punishment.  Early  English 
precedents  do  not  seem  to  indicate  that  this  was  the  conception  of  the 
scope  of  the  pardoning  power  which  then  prevailed.  Professor  Williston 
has  called  attention  to  a  number  of  early  English  cases  that  tend  to 
prove  this  assertion.^    Bracton,  in  the  thirteenth  century,  wrote: 

For  the  king  cannot  grant  a  pardon  with  injury  or  damage  to  others.  He 
may  give  what  is  his  own,  that  is  his  protection,  which  the  outlawed  person  has 
lost  through  his  flight  and  contumacy,  but  that  which  is  another's  he  cannot 

'  2  Blackstone,  p.  402. 

^  Ex  parte  Garland,  4  Wall.  333,  380.  (Note. — Frequent  references  are  made  to 
the  decisions  of  the  federal  judiciary  although  this  study  does  not  deal  with  the  national 
pardoning  power.  These  cases  are  cited  for  the  reason  that  the  legal  aspects  of  this 
problem  are  similar  in  the  states  and  the  nation,  and  because  state  courts  are  often 
guided  by  precedents  established  by  the  federal  courts.) 

3  Samuel  Williston,  "Does  a  Pardon  Blot  Out  Guilt?"  Harvard  Law  Review, 
XXVIII,  647- 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      iii 

give  by  his  own  grace.  Likewise  a  person  justly  and  duly  outlawed  is  not 
restored  to  anything  except  to  the  king's  peace,  that  he  may  go  and  return  and 
have  protection,  but  he  cannot  be  restored  to  his  rights  of  action  and  other 
things,  for  he  is  like  a  new-born  infant  and  a  man  as  it  were  lately  born.  Like- 
wise inlawry  does  not  restore  a  person  to  his  previous  actions  and  obligations, 
nor  to  his  homage  nor  fealties,  nor  to  his  oaths,  nor  to  other  things  dissolved 
by  his  outlawry,  against  the  will  of  those  by  whose  will  they  were  previously 
limited  and  confirmed,  and  accordingly  neither  to  his  inheritances,  nor  to  his 
tenements  to  the  prejudice  of  the  lords,  and  so  they  cannot  be  restored  to 
those  things  to  which  they  had  only  a  right.  But  no  one  is  bound  to  them  by 
preceding  obligations,  but  they  are  bound  to  all  others,  that  they  may  not 
be  in  a  better  condition  on  account  of  their  outlawry,  since  they  ought  to  be  in 
a  worse  condition.' 

It  has  also  been  said  that 

The  king  could  not  protect  the  manslayer  from  the  suit  of  the  dead  man's 
kin.  Even  when  pardon  was  granted  on  the  score  of  misadventure,  this  suit 
was  saved  by  express  words.  Proclamation  was  made  in  court  inviting  the  kin 
to  prosecute,  but  telling  them  that  they  must  come  at  once  or  never. ^ 

In  describing  the  status  of  a  criminal  who  had  been  pardoned,  Lord 
Coke  said  in  1614  that  "  he  is  not  a  fit  person  to  serve  on  a  jury  "  and  also 
"by  the  same  reason  the  testimony  of  such  an  one  for  a  witness  is  in  all 
cases  to  be  rejected."^ 

In  the  following  year  in  the  case  of  Cuddington  v.  Wilkins,  Hob. 
67,  81;  s.c.  Brownl.  &  G.  10,  Cuddington  sued  Wilkins  for  having  called 
him  a  "  thief."  Although  he  had  been  convicted  of  this  crime  he  pleaded 
that  he  had  received  a  general  pardon  from  the  king.  By  reason  of 
this  fact  the  court  held  for  the  plaintifif. 

But  two  years  later  in  discussing  this  case  the  court  said, 

It  was  said,  that  he  could  no  more  call  him  thief,  in  the  present  tense,  than 
to  say  a  man  hath  the  pox,  or  is  a  villain  after  he  be  cured  or  manumised,  but 
that  he  had  been  a  thief  or  villain  he  might  say.-* 

This  decision  was  contrary  to  Coke's  opinion  that  a  pardoned 
criminal  could  not  testify,  but  this  did  not  mean  that  such  testimony 
was  unquestioned.  In  Bacon,  Abr.,  title  Pardon  (H),  it  is  said:  ''A 
pardon  restores  a  man  to  his  credit  so  as  to  enable  him  to  be  a  witness, 
but  yet  his  credit  must  be  left  to  the  jury."  And  in  Rookwood's  Case, 
Holt  683,  685,  Justice  Holt  said,  "The  pardon  restores  him  to  his 

'  Bracton  (Twiss's  translation,  II,  371). 

'  Pollock  and  Maitland,  History  of  English  Law,  II,  481. 

^  Brown  v.  Crashaw,  2  Bulst.  154.  *  Searle  v.  Williams,  2  Hob.  288,  294. 


112      THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

former  capacity,"  but,  "the  conviction  indeed  might  be  objected  to 
his  credit." 

In  discussing  the  significance  of  these  statements  and  decisions 
which  he  has  presented  in  his  article  Professor  Williston  has  said: 

The  true  line  of  distinction  seems  to  be  this:  The  pardon  removes  all 
legal  punishment  for  the  offense.  Therefore  if  the  mere  conviction  involves 
certain  disqualifications  which  would  not  follow  from  the  commission  of  the 
crime  without  conviction,  the  pardon  removes  such  disqualifications.  On  the 
other  hand,  if  character  is  a  necessary  qualification  and  the  commission  of  a 
crime  would  disqualify  even  though  there  had  been  no  criminal  prosecution 
for  the  crime,  the  fact  that  the  criminal  has  been  convicted  and  pardoned  does 
not  make  him  any  more  eligible. 

The  importance  of  the  distinction  suggested  may  be  illustrated  by  modern 
decisions  which  generally  support  in  their  results  the  argument  here  advanced, 
but  often  not  without  finding  some  trouble  to  escape  from  the  effect  in  Ex  parte 
Garland  and  similar  statements  to  the  effect  that  a  pardoned  convict  is  to 
be  treated  as  if  he  were  innocent.' 

It  may  be,  as  Professor  Williston  has  pointed  out,  that  the  reason 
courts  have  held  to  the  view  expressed  in  Ex  parte  Garland  has  been  the 
hardness  and  rigidity  of  the  criminal  law.  No  new  trial  was  obtainable 
in  the  case  of  felony  under  the  English  law.^  This  situation  was  not 
remedied  until  the  creation  of  a  court  of  criminal  appeal  in  1907.  In 
case  a  person  was  unjustly  convicted  a  pardon  furnished  the  only 
remedy.  In  order  to  undo  an  injustice  in  such  a  case  the  practice  was 
perhaps  resorted  to  of  saying  that  a  convict  who  was  pardoned  had  his 
guilt  blotted  out  and  in  the  eyes  of  the  law  he  was  "as  innocent  as  if 
he  had  never  committed  the  offense."  In  the  United  States  a  new  trial 
could  more  readily  be  secured  if  the  order  was  made  before  the  end  of 
the  term,  but  it  is  still  difficult  to  do  so  after  the  term  has  expired  in 
which  the  conviction  was  had.^ 

Yet  the  view  of  the  nature  of  a  pardon  as  expressed  in  Ex  parte 
Garland  seems  to  be  extreme  and  far-fetched.  A  much  more  reasonable 
and  consistent  doctrine  seems  to  have  been  announced  by  a  federal 
district  court  as  follows: 

After  a  pardon  there  is  "oblivion"  as  to  the  past.  If,  however,  there  be 
any  "oblivion,"  it  is  not  as  to  the  actual  happening  of  things,  but  as  to  the 
attending  consequences.  Amnesty  or  pardon  obliterates  the  offense  at  least 
to  such  extent  that  for  all  legal  purposes  the  one-time  offender  is  to  be  relieved 

'  Samuel  Williston,  op.  cit. 

^  Regina  v.  Murphy,  L.R.  2  P.C.  535.  ^  United  States  v.  Mayer,  235  U.S.  55. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      113 

in  the  future  from  all  its  results;  but  it  does  not  obliterate  the  acts  themselves. 
It  puts  the  offender  in  the  same  position  as  though  what  he  had  done  never 
had  been  unlawful ;  but  it  does  not  close  the  judicial  eye  to  the  fact  that  once 
he  had  done  the  acts  which  constituted  the  offense.  A  pardon  or  amnesty 
secures  against  the  consequences  of  one's  acts,  and  not  against  the  acts 
themselves;  it  involves  forgiveness,  not  forgetfulness.' 

But  a  pardon  may  not  always  offer  sufficient  relief.  For  example 
in  a  case  in  which  a  pardon  had  been  granted  to  a  person  who  had  pleaded 
guilty  through  fear  of  mob  violence  the  court  held  that  the  power  of 
pardon  did  not  deprive  a  court  of  the  right  to  hear  and  determine  such 
a  case.^ 

OFFENSES   SUBJECT   TO   THE   PARDONING   POWER 

Almost  the  entire  range  of  crime  falls  within  the  pardoning  power 
in  the  United  States.  The  only  offenses  that  are  generally  withdrawn 
from  the  usual  pardon  authority  are  treason  and  impeachment.  This 
practice  of  excepting  impeachment  is  at  variance  with  English  practice. 
In  England  a  pardon  cannot  be  pleaded  as  a  bar  to  impeachment. 
Resolutions  to  this  effect  were  passed  as  early  as  1679  and  1688  by  the 
House  of  Commons.  The  Act  of  Settlement  (12&13  Wm.  Ill)  provided 
"that  no  pardon  under  the  great  seal  of  England  be  pleadable  to  an 
impeachment  by  the  Commons  in  Parliament."  But  Blackstone  held 
that  the  king's  power  to  pardon  was  not  subject  to  curtailment  after 
an  impeachment  had  been  decided  and  sentence  pronounced.  Dicta 
to  the  same  effect  is  found  in  some  American  decisions.  {Ex  parte 
Wells,  18  How.  307;  Commonwealth  v.  Lockwood,  109  Mass.  323;  Sterling 
V.  Drake,  29  Ohio  St.  457).  This  is  not  the  case  in  the  United  States 
or  in  the  American  states. 

This  can  perhaps  be  explained  because  of  the  difference  in  the 
penalty  in  England  and  in  America.  In  England  the  judgment  pro- 
nounced in  the  event  of  the  impeachment  charges  being  sustained  may 
extend  to  the  entire  punishment  which  the  law  attaches  to  the  offense. 
In  the  United  States  it  involves  removal  from  office  only,  and  possible 
disability  to  hold  future  office.^ 

The  question  has  been  raised  whether  the  pardoning  authority  can 
pardon  for  contempt  of  court.  It  has  generally  been  held  that  a  con- 
tempt of  court  is  an  offense  against  the  state  and  not  against  the  judge 

»  United  States  v.  Swift,  186  Fed.  1002. 
^  Saunders  v.  State,  S5  Ind.  318. 
J  Ruling  Case  Law,  XX,  535-36. 


114     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

personally.  Therefore  the  state  may  act  through  another  branch  of 
government  and  exercise  its  power  of  clemency  if  it  so  desires.' 

It  has  been  held  that  a  territorial  governor,  although  empowered  to 
pardon  for  violation  of  territorial  law,  cannot  set  aside  an  order  which 
disbars  an  attorney  for  unprofessional  conduct.^  It  has  also  been  ruled 
that  the  president  of  the  United  States  cannot  pardon  from  imprison- 
ment judges  who  have  refused  to  obey  a  mandamus  which  directed 
them  to  levy  a  tax  necessary  to  meet  a  judgment  rendered  against  a 
county.  This  was  on  the  ground  that  the  proceedings  in  question  were 
for  the  purpose  of  protecting  the  legal  rights  of  the  suitors  which  the 
president  could  not  release,  and  were  not  executions  of  the  criminal 
law.3  Yet  it  has  been  held  that  the  president  may  remit  a  fine  imposed 
for  contempt  in  violating  an  injunction  when  the  court  had  ordered  the 
fine  to  be  paid  to  the  plaintiff  for  "the  reimbursement  of  his  expenses 
in  the  attachment  proceedings  in  respect  of  such  contempt."'' 

In  a  Nebraska  case  the  defendant  was  imprisoned  for  failing  to  pay 
a  sum  of  money  for  the  support  of  his  bastard  child.  It  was  ruled  that 
the  governor  could  not  pardon  the  defendant  because  the  crime  of 
bastardy  did  not  exist  under  statute  law  in  that  state  and  there  were 
no  common  law  crimes.  It  was  therefore  held  that  a  pardon  under  such 
circumstances  would  have  operated  as  a  release  from  a  civil  obligation. ^ 

It  has  generally  been  held  that  a  state  governor  cannot  pardon 
nor  remit  a  fine  imposed  on  one  who  has  violated  a  municipal  ordinance 
unless  this  power  has  been  conferred  upon  him  definitely.  It  is  true, 
however,  that  many  state  offenses  are  tried  in  police  or  municipal 
courts,  and  in  all  cases  of  conviction  in  these  instances  the  governor  or 
pardoning  authority  may  exercise  the  pardoning  power.^ 

A  pardon  may  be  granted  to  one  convicted  of  maintaining  a  nuisance, 
but  such  pardon  does  not  authorize  the  continuance  of  the  nuisance. 
Only  transient  nuisances  are  pardonable." 

^ In  re  Mullee,  Fed.  Cas.  No.  9911  (7  Blatchf.  23);  State  v.  Sauninet,  24  La. 
Ann.  119;  Ex  parte  Hinkey,  4  Smedes  &  Marshall  751  (12  Miss.  751);  Sharp  v.  State, 
102  Tenn.  9;  Contra.  Taylor  v.  Goodrich,  25  Tex.  Civ.  App.  109. 

=  Ex  parte  Browne,  2  Colo.  553. 

3  In  re  Nevit,  54  CCA.  622. 

4/«  re  Mullee,  Fed.  Cas.  No.  991 1. 

5  Campion  v.  Gillanj  79  Neb.  364. 

^  Paris  V.  Hinton,  132  Ky.  684;  Allen  v.  McGuire,  100  Miss.  781;  State  ex  rel.  v. 
Renick,  157  Mo.  292. 

7  Thomas  v.  Sorrell,  Vaughn  2>32>- 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER     115 

It  has  been  held  by  a  unanimous  decision  of  the  United  States 
Supreme  Court  that  a  witness  who  refuses  to  accept  an  unconditional 
pardon  does  not  thereby  lose  his  right  of  refusing  to  incriminate  himself.' 
It  may  be  true  that  the  acceptance  of  a  pardon  implies  that  the  benficiary 
is  guilty,  but  this  would  also  hold  true  of  one  who  avails  himself  of  the 
advantages  of  statutes  of  immunity.  Since  these  latter  have  been  upheld 
by  the  courts,  and  since  a  witness  is  protected  against  punishment  in 
either  case,  it  would  appear  that  the  state  should  have  the  right  to 
obtain  and  use  his  testimony. 

WHO   MAY   EXERCISE   CLEMENCY 

In  the  American  system  of  government  the  pardoning  power  is  not 
inherent  in  any  state  officer  or  department.  Therefore  the  people  in 
the  framing  of  a  constitution  may  lodge  the  pardoning  power  in  that 
branch  of  government  which,  in  their  opinion,  will  most  efficiently 
exercise  it.^  It  is  not  necessarily  an  executive  function,  and  if  the 
constitution  is  silent  it  vests  no  more  power  in  one  branch  of  the  govern- 
ment than  another.^  Most  pardons  proceed  from  the  Crown  in  England 
and  yet  it  has  been  regulated  by  statute  from  time  to  time;  and  pardons, 
both  general  and  special,  have  been  granted  by  acts  of  Parliament.'' 

In  the  United  States  the  pardoning  power  is  intrusted  in  most 
instances  to  the  executive  branch  of  government  and  yet  it  appears 
that  pardons,  and  especially  amnesty,  have  been  granted  by  state 
legislatures.'^  The  weight  of  authority  holds,  however,  that  a  legislature 
cannot  grant  a  pardon  after  conviction.^  In  Massachusetts  the  General 
Court  cannot  commute  punishment  after  sentence.^  In  Missouri  the 
pardoning  power  belongs  exclusively  to  the  executive  department.^ 
In  Florida  the  clemency  power  cannot  be  exercised  by  the  legislature.' 
The  same  is  true  in  Tennessee."  Likewise  in  the  national  government 
it  has  been  held  that  the  president's  power  of  pardon  is  not  subject  to 

'  Burdick  v.  United  States,  236  U.S.  79. 

^. Laird  v.  Sims,  16  Ariz.  521.  ^  Stale  v.  Nichols,  26  Ark.  74. 

"  Bishop,  Criminal  Law,  7th  ed.,  sec.  899. 

s  Bird  V.  Breedlove,  24  Ga.  623;  State  v.  Blalock,  Phillips  242;  Haddix  v.  Wilson, 
3  Bush.  523;  Michael  v.  Slate,  40  Ala.  361;  State  v.  Keith,  63  N.C.  140;  Greathouse's 
Case,  2  Abb.  U.S.  382;  State  v.  Dunning,  9  Ind.  20. 

«34L.R.A.  251. 

^  In  re  Opinion  of  Justices,  14  Mass.  472. 

^  State  V.  Sloss,  25  Mo.  291;  Stale  v.  Todd,  26  Mo.  175. 

«  Singleton  v.  State,  38  Fla.  297.  '"  Slate  v.  Fleming,  26  Tenn.  152. 


ii6     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

legislation,  and  that  Congress  cannot  limit  the  effect  of  his  pardon, 
nor  exclude  from  its  exercise  any  class  of  offenders.' 

Yet  it  has  been  held  that  an  act  giving  to  parties  imprisoned  for 
non-payment  of  fines  the  benefit  of  laws  for  the  relief  of  insolvent  debtors 
and  authorizing  their  discharge  as  such  is  not  an  attempt  to  deprive  the 
governor  of  the  pardoning  power  and  to  vest  it  elsewhere.^  Likewise 
it  has  been  held  that  a  statute  providing  for  the  reduction  of  the  term  of 
imprisonment  because  of  good  behavior  is  to  be  regarded  as  a  part  of 
the  sentence  Imposed,  and  is  not  therefore  an  invasion  of  the  governor's 
power  of  clemency. 3  The  Supreme  Court  of  the  United  States  has 
upheld  a  Congressional  statute  granting  immunity  from  prosecution  to 
witnesses  who  were  compelled  to  testify.  Although  the  Constitution 
confers  upon  the  president  general  clemency  power  yet  the  Court  held 
that  this  did  not  deprive  Congress  of  the  power  to  pass  acts  of  general 
amnesty,  and  the  Congressional  statute  in  question  was  regarded  as  an 
act  of  this  character.-*  It  has  also  been  held  in  state  courts  that  the 
legislature  may  grant  general  amnesty.^ 

The  power  to  issue  general  amnesty  is  not  confined  to  the  legislative 
branch  of  government.  Chief  Justice  Taft  while  solicitor-general  of 
the  United  States  rendered  an  opinion  that  the  president  had  the  consti- 
tutional power,  without  authorization  by  Congress,  to  issue  a  general 
pardon  or  amnesty.  He  argued  that  the  president  could  pardon  an 
offender  because  his  offense  was  one  of  many  like  offenses. 

He  may,  for  the  same  reason,  grant,  by  separate  acts  of  pardon,  immunity 
from  punishment  to  each  of  a  thousand  such  offenders.  If  he  may  do  so,  it  is 
difficult  to  see  why  he  does  not  exercise  the  same  power,  when  by  pubHc 
proclamation  he  extends  a  pardon  to  ten  thousand  offenders,  without  naming 
them,  but  describing  them  as  persons  committing  or  participating  in  the  same 
kind  of  offenses.  The  right  to  pardon  is  not  dependent  on  the  existence  of  any 
particular  grounds  in  the  case  of  each  offender.  Therefore  pardon  or  amnesty 
may  be  granted  if  the  grantor  is  certain,  the  extent  of  the  grant  is  certain,  and 
the  grantees  are  so  described  that  they  can  be  made  certain.* 

In  support  of  this  view  Mr.  Taft  sketches  the  historical  use  of  this 
power.  In  1794  the  whisky  insurrectionists  were  pardoned  by  President 
Washington  through  a  proclamation  of  amnesty.  The  president  also 
authorized  General  Lee,  who  was  the  commander-in-chief  of  the  forces 
of  the  United  States,  to  issue  a  similar  proclamation.     Governor  Mifflin 

'  United  States  v.  Klein,  13  Wall.  128.       ^  Brown  v.  Walker,  161  U.S.  591. 
^  Ex  parte  Scott,  19  Ohio  St.  581.  s  State  v.  Bowman,  145  N.C.  452. 

3  Ex  parte  Wadleigh,  82  Cal.  518.  '  Opinions  of  Attorney-General,  XX,  332. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      117 

of  Pennsylvania  issued  a  similar  pardon  to  these  rebels  for  their  acts 
against  this  state.  In  1800  President  John  Adams  issued  a  general 
proclamation  of  amnesty  to  these  same  offenders.  President  Madison 
pardoned  through  proclamation  a  group  of  smugglers  and  violators  of 
the  federal  revenue  laws,  known  by  the  name  of  the  "Barataria" 
pirates. 

Congress  by  an  Act  of  July  17,  1862  (12  Stat.,  592)  authorized  the 
president  to  grant  amnesty  to  persons  who  were  participants  in  the 
rebellion,  on  such  conditions  as  he  deemed  expedient.  President 
Lincoln  did  this  by  a  proclamation  on  December  8,  1863,  but  he  distinctly 
asserted  that  he  did  it  by  virtue  of  his  constitutional  power  and  not 
because  of  grant  by  Congress.  Several  pardon  proclamations,  limited 
in  their  scope,  were  issued  by  President  Johnson  during  the  early  part 
of  his  administration.  In  January,  1867,  the  amnesty  section  of  the 
Act  of  1862  was  repealed  by  Congress  (14  Stat.,  377).  In  spite  of  this 
he  issued  another  limited  pardon  proclamation  on  September  7,  1867. 
Then  he  issued  a  full  and  absolute  pardon  by  proclamation,  July  4,  1868 
(15  Stat.,  702),  which  applied  to  all  rebels  except  those  that  had  been 
indicted  for  treason.  Finally  on  Christmas  day,  December  25,  1868, 
he  issued  a  proclamation  (15  Stat.,  711)  in  which  he  granted  a  complete 
and  unconditional  pardon  to  all  who  had  taken  part  in  the  rebellion. 
Presidents  Johnson  and  Grant  on  July  3,  1866,  and  October  10,  1873, 
respectively,  issued  proclamations  of  pardon  to  all  deserters  who  should 
return  to  the  army. 

In  the  case  of  United  States  v.  Klein  (13  Wall.  128)  the  court  made 
the  following  remark  in  reference  to  the  amnesty  clause  of  the  act  of 
July  17,  1862:  "The  suggestion  of  pardon  by  Congress,  for  such  it  was 
rather  than  authority,  remained  unacted  on  for  more  than  a  year."  In 
the  case  of  Armstrong  v.  United  States  (13  Wall.  154)  where  the  claimant's 
rights  were  based  entirely  on  President  Johnson's  proclamation  of 
December  25,  1868,  the  Supreme  Court  said:  "The  proclamation  of  the 
25th  of  December  granted  pardon  unconditionally  and  without  reserva- 
tion.' This  was  a  public  act  of  which  all  courts  of  the  United  States 
are  bound  to  take  notice  and  to  which  all  courts  are  bound  to  give 
effect." 

This  scholarly  opinion  of  Mr.  Taft  makes  it  clear  that  the  president 
may  grant  an  absolute  and  general  pardon  or  amnesty  without  legislative 
authorization.^     The  ruling  of  the  Supreme  Court  in  these  cases  has  also 

'  "Opinion  on  Power  of  the  President  to  Grant  Amnesty"  by  Solicitor- General 
William  Howard  Taft  in  Opinions  of  Attorney-General,  XX,  330-45. 


ii8     THE  PARDONING  POWER  IN  TEE  AMERICAN  STATES 

been  followed  in  both  federal  and  in  some  state  courts  in  subsequent 
cases.' 

Although  the  clemency  power  of  the  legislative  branch  of  government 
is  much  limited  and  curtailed,  yet  the  legislature,  it  would  seem,  may 
exercise  clemency  in  an  indirect  way.  The  legislature  may  repeal  the 
statute  creating  an  offense.  All  pending  prosecutions  must  fall,  and  all 
prior  offenses  not  yet  prosecuted  are  wiped  out  by  such  repeal.  Yet 
this  result  is  not  quite  so  full  as  if  it  had  been  accomplished  by  means  of 
a  pardon,  for  "after  a  pardon  has  been  granted  and  accepted  it  cannot 
be  withdrawn,  whereas  after  a  statute  has  been  repealed  a  new  statute 
may  authorize  prosecution  for  an  offense  committed  under  it  before  the 
repeal."^ 

The  extent  to  which  the  judiciary  may  suspend  sentence  and  place 
on  probation  a  person  convicted  of  violation  of  law  is  a  matter  on  which 
opinion  is  divided.  By  some  it  is  held  that  such  action  is  an  invasion 
of  the  pardoning  power  of  the  executive.  It  has  been  held  in  a  federal 
court  that  if  a  sentence  is  indefinitely  suspended  by  a  court,  such  suspen- 
sion has  the  effect  of  condoning  and  pardoning  the  offense  and  is  therefore 
void  because  it  is  an  exercise  of  the  pardoning  power. ^ 

In  Indiana  it  was  ruled  that  an  act  authorizing  the  Supreme  Court 
on  an  appeal  after  conviction  to  suspend  the  sentence  of  death  or  to 
remit  forfeitures  was  void.-*  But  it  has  also  been  held  in  the  same  state 
that  the  supreme  court  may  grant  a  stay  of  execution  in  a  capital  case 
when  necessary  to  investigate  questions  presented  by  the  record  inde- 
pendently of  any  statute  granting  such  right.  This,  it  was  held,  is  not 
an  invasion  of  the  governor's  pardoning  power,  for  the  act  is  not  a 
reprieve  within  the  meaning  of  the  constitution.s  A  later  Indiana 
statute  authorizing  criminal  courts  to  suspend  sentence  and  parole 
convicted  persons  was  interpreted  not  to  authorize  courts  to  suspend 
sentence  and  parole  after  final  judgment  had  been  rendered,  nor  to 
suspend  the  collection  of  a  fine  after  entry  of  final  judgment  had  been 
made.^  In  Oklahoma  it  was  held  that  a  trial  judge  after  granting  an 
appeal  in  a  capital  case  cannot  stay  the  execution  of  judgment.'' 

^  Pargotid  V.  United  States,  13  Wall.  156;  Carlisle  v.  United  States,  16  Wall.  147; 
Knote  V.  United  States,  95  U.S.  149;  State  v.  Sloss,  25  Mo.  291;  State  v.  Fleming, 
7  Humphreys  152;  Haley  v.  Clark,  26  Ala.  439;  People  v.  Moore,  62  Mich.  496. 

^  Bishop,  Criminal  Law,  7th  ed.,  sec.  901. 

3  United  States  v.  Wilson,  46  Fed.  748.       s  Parker  et  al.  v.  The  Stale,  135  Ind.  534. 

•f  Butler  V.  State,  97  Ind.  373.  ^  Stale  v.  Smith,  173  Ind.  388. 

7  Opinion  of  the  Judges,  3  Okla.  Cr,  App.  315. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      119 

On  the  other  hand  it  has  been  ruled  in  Kansas  that  the  discretionary 
action  of  a  judge  is  not  open  to  review  who  paroles  a  prisoner  under  a 
statute  which  authorizes  such  action  when  he  is  satisfied  that  such 
person  may  be  paroled.'  A  Nebraska  statute  providing  that  a  magistrate 
might  release  a  prisoner  or  remit  the  fine  of  a  person  convicted  before 
him  for  intoxication  on  condition  that  such  person  give  evidence  under 
oath  as  to  when,  where,  and  of  whom  he  received  the  liquor  was  held  not 
to  be  an  infringement  of  the  pardoning  power.  The  reasoning  of  the 
court  was  that  one  requirement  was  substituted  for  another  and  therefore 
it  was  not  the  grant  of  a  pardon.^ 

It  is  generally  agreed  that  a  governor  who  has  been  impeached 
cannot  grant  clemency  until  after  the  removal  of  the  disability.^  A 
pardon  is  valid  when  granted  by  a  person  who  is  a  de  facto  governor 
although  his  title  to  the  office  is  not  perfect.''  But  a  pardon  granted 
by  one  who  is  merely  claiming  to  hold  over  after  expiration  of  his  term 
as  governor,  and  after  he  has  done  acts  and  made  declarations  which 
are  the  equivalent  of  a  resignation  or  a  disclaimer  to  hold  office  is  void.^ 
If  the  governor  is  absent  from  the  state  the  lieutenant  governor  is 
invested  with  full  power  to  grant  clemency.^  The  attempt  of  a  lieutenant 
governor  of  Oklahoma  to  exercise  this  power  under  these  conditions 
met  with  vigorous  opposition  by  the  governor. 

APPLICATION,    ISSUANCE,   AND   REQUISITES   OF   PARDONS 

Although  notice  of  intention  to  make  application  for  a  pardon  was 
required  in  Nevada  yet  it  was  held  that  when  application  was  made 
after  the  term  of  imprisonment  was  ended  no  such  notice  of  intention 
was  required.^  A  New  York  statute  provided  that  before  application 
for  a  pardon  could  be  presented,  notice  must  be  served  on  the  district 
attorney,  and  that  proof  of  such  service  must  be  presented  to  the 
governor.  Yet  the  omission  to  give  such  notice,  it  was  held,  did  not 
deprive  the  governor  of  authority  to  act  since  it  did  not  depend  upon  an 
application  being  made  in  a  particular  way.*  In  Massachusetts  the 
governor  can  only  grant  clemency  with  the  advice  of  the  Council.  But 
he   is  not  required  on  the  presentation  of  a  petition  for  pardon  or 

'  Stale  V.  Nile,  81  Kan.  204.  '  Pleuler  v.  State,  11  Xeb.  547. 

i  People  ex  ret.  Robin  v.  Hayes,  143  N.Y.S.  325,  149  N.Y.S.  250,  163  N.Y.S.  725. 
*Ex  parte  Norris,  8  S.C.  (8  Rich.)  408.  s  Ibid. 

^  Ex  parte  Crump,  135  P.  428;  Stewart  v.  Stale,  146  P.  921;  Ex  parte  Cullins, 
II  Okla.  Cr.  644. 

7  Slate  V.  Foley,  15  Nev.  64.  '  In  re  Edymoin,  8  How.  Prac.  478. 


I20     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

commutation  of  sentence  to  refer  such  petition  to  the  Executive  Council 
unless  he  considers  it  his  duty  to  exercise  the  pardoning  power. ^ 

In  Missouri  it  has  been  ruled  that  a  pardon  must  accurately  describe 
the  offense  to  be  pardoned  in  order  to  be  valid. ^  Yet  in  Michigan  it 
has  been  ruled  that  the  validity  of  a  pardon  is  not  affected  by  the  fact 
that  it  mistakenly  states  that  the  prisoner  has  been  sentenced,  that  it 
is  not  addressed  to  the  court  which  has  the  prisoner  in  its  custody,  that 
it  fails  to  state  the  date  of  his  conviction,  and  that  only  the  initials 
of  the  governor's  Christian  names  are  given.^  The  incorrect  spelling  of 
the  prisoner's  surname  to  whom  it  was  granted  has  been  held  not  to 
vitiate  a  pardon.''  Looseness  in  the  description  of  the  offense  pardoned 
has  also  been  permitted  in  Texas.  In  one  case  the  record  of  conviction 
showed  that  the  defendant  was  convicted  of  the  "theft  of  a  steer"  in 
the  June  term  of  court.  But  the  pardon  described  the  offense  as  "cow- 
stealing"  and  stated  that  it  was  in  the  September  term  of  court  in  which 
the  conviction  was  obtained.  The  court  held  that  the  pardon  was  valid 
in  the  absence  of  fraud. ^ 

A  pardon  or  commutation  of  sentence  is  not  void  because  there  is 
no  entry  of  it  made  in  the  office  of  the  secretary  of  state,  although  he  is 
required  by  law  to  keep  a  register  of  the  official  acts  of  the  governor.*^ 
But  a  pardon  issued  without  a  seal  is  void  when  the  law  requires  that 
pardons  granted  by  the  governor  shall  be  under  seal.''^ 

In  some  states,  as  well  as  in  the  national  government,  the  chief 
executive  may  grant  a  pardon  before  as  well  as  after  conviction.  This, 
however,  cannot  mean  that  a  pardon  can  be  extended  before  an  offense 
is  committed,  for  such  immunity  would  be  in  the  nature  of  a  license  to 
commit  crime.  President  Lincoln  stated  a  year  after  his  Amnesty 
Proclamation  of  December  8,  1863,  that  the  rebels  could  still  avail 
themselves  of  its  privileges.  It  would  seem  that  this  could  not  apply 
to  illegal  acts  committed  after  December  8,  1863.*  When  clemency  may 
be  granted  before  as  well  as  after  conviction  the  general  doctrine  seems 
to  be  that  it  may  be  remitted  either  before  judicial  proceedings  are 

'  In  re  Opinion  of  the  Justices,  190  Mass.  66. 

^  Ex  parte  Higgins,  14  Mo.  App.  601. 

3  Spafford  v.  Benzie  Circuit  Judge,  136  Mich.  25. 

■t  In  re  Edymoin,  8  How.  Prac.  478. 

5  Hunnicut  v.  State,  20  Tex.  App.  632. 

*  Ex  parte  Reno,  66  Mo.  266. 

7  Sutton  V.  Mcllhany,  1  Ohio  Dec.  235. 

'  Bishop,  Criminal  Law,  7th  ed.,  sec.  904. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      121 

begun,  while  they  are  pending,  after  their  termination,  or  after  punish- 
ment has  been  partly  or  fully  endured  ' 

Most  state  constitutions  provide  that  clemency  can  only  be  granted 
after  conviction  Legally  a  conviction  results  from  a  plea  of  guilty  or 
a  verdict  of  guilty.  Therefore  a  pardon  may  be  granted  in  such  instance 
before  sentence  is  pronounced  as  well  as  after. ^  Likewise  a  pardon 
granted  after  conviction  but  pending  an  appeal  to  a  higher  court  is 
valid. ^  The  pardoning  authority  also  has  the  power  to  pardon  an 
oflfense  although  the  term  of  imprisonment  has  expired,  so  long  as  any 
of  the  legal  consequences  remain.'' 

A  pardon  is  not  complete  and  is  of  no  effect  until  it  has  been  delivered 
and  accepted.5  Since  a  pardon  is  an  act  of  grace  it  must  be  accepted  for 
it  is  in  the  nature  of  a  deed.^  "Delivery  and  acceptance  are  complete 
when  the  grantor  has  parted  with  his  control  of  dominion  over  the 
instrument  with  the  intention  that  it  shall  pass  to  the  grantee,  and  the 
latter  assents  to  it  either  by  himself  or  by  agent."''  What  constitutes 
delivery  of  a  pardon  has  resulted  in  some  discussion.  It  has  been  held 
in  one  state  that  the  delivery  of  a  pardon  by  the  governor  to  the  prisoner's 
attorney  is  a  constructive  delivery  to  the  prisoner.  The  return  of  the 
pardon  to  the  governor  at  his  request  by  the  sheriff  to  whom  the  pardon 
had  been  sent  for  execution  does  not  destroy  the  validity  nor  eflfectiveness 
of  the  pardon.*  Constructive  delivery  to  the  prisoner  has  occurred,  it 
has  been  held,  when  the  governor  delivers  a  pardon  to  one  who  sues  for 
the  release  of  a  prisoner. '  In  one  case  a  pardon  was  sent  by  the  governor 
to  a  prosecuting  attorney.  The  latter  used  this  as  a  basis  for  examining 
as  a  witness  the  criminal  who  was  to  receive  the  pardon.  The  witness 
did  not  repudiate  this  act  but  exercised  his  right  to  testify  by  virtue  of 

'  Stale  V.  Woolery,  29  Mo.  300. 

^Spqfford  v.  Benzie  Circuit  Judge,  136  Mich.  25;  Ex  parte  Collins,  94  Mo.  22; 
Parker  v.  State,  103  Tenn.  547. 

^Commonwealth  v.  Lockwood,  109  Mass.  323;  State  v.  Alexander,  76  N.C.  231; 
Gilmore  v.  State,  3  Okla.  Cr.  639;  State  v.  Garrett,  135  Tenn.  617;  People  v.  Marsh, 
125  Mich.  410. 

*  In  re  Stetler,  Fed.  Cas.  No.  13380;  State  v.  Foley,  15  Nev.  64;  Hunnicutt  v. 
State,  18  Tex.  App.  498;  Easlerwood  v.  State,  34  Tex.  Cr.  R.  400. 

5  United  States  v.  Wilson,  32  U.S.  150;  Ex  parte  Powell,  73  Ala.  517;  Common- 
wealth V.  Halloway,  44  Pa.  210;  Ex  parte  Williams,  149  N.C.  436;  Ilarlin  v.  McGourin, 
218  U.S.  442;  Carpenter  v.  Lord,  88  Or.  128;  Burdick  v.  United  States,  236  U.S.  79. 

^People  V.  Frost,  117  N.Y.S.  524. 

'  Rosson  V.  State,  23  Tex.  App.  287. 

•  Ex  parte  Williams,  149  N.C.  436.  » Ex  parte  Reno,  66  Mo.  266. 


122      TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

the  pardon.  It  was  here  held  that  in  this  case  sufficient  delivery  and 
acceptance  had  occurred.^ 

A  pardon  granted  by  an  outgoing  president  may  be  revoked  by  an 
incoming  president  before  its  delivery  to  the  prisoner/  In  one  case  a 
forged  letter  asking  for  the  pardon  of  a  prisoner  was  purported  to  have 
been  sent  by  the  War  Department  to  a  state  governor.  The  pardon 
was  granted  and  placed  in  the  hands  of  a  United  States  marshal  to  be 
served  on  the  prison  warden.  It  was  held  in  this  case  that  such  act  did 
not  constitute  an  effective  delivery  to  the  prisoner.  Usually  it  is  held  that 
delivery  of  a  pardon  to  a  prison  warden  is  a  constructive  delivery  to 
the  prisoner  himself,  but  in  this  case  it  was  ruled  that  the  circumstances 
were  inconsistent  with  any  intent  to  grant  and  deliver  a  pardon  and 
therefore  no  delivery  had  taken  place.^  In  a  federal  case  it  was  held 
that  a  pardon  signed  and  sealed  by  the  president  and  received  by  the 
marshal  to  whom  it  was  directed,  but  never  delivered  to  the  warden 
of  the  prison,  did  not  constitute  a  constructive  delivery.'' 

Unless  contrary  proof  is  shown  the  presumption  is  upheld  that  a 
pardon  has  been  accepted. ^  When  a  convict  accepts  a  conditional 
pardon  it  is  considered  that  he  accepts  freely  and  voluntarily  and  not 
under  duress  by  reason  of  his  imprisonment.*  When  the  death  penalty 
is  commuted  in  case  of  the  insanity  of  the  prisoner,  such  commutation 
is  valid  without  the  acceptance  of  the  convict.  His  rejection  of  it  after 
the  restoration  of  his  sanity  will  not  have  the  effect  of  invalidating  it.'' 
Likewise  a  reprieve  issued  by  a  governor  is  effective  without  the  consent 
or  acceptance  of  the  prisoner  who  is  under  sentence  of  death.* 

REVOCATION   FOR   FRAUD 

It  has  been  often  stated  by  courts  that  a  pardon  procured  by  fraud 
is  void.9  This  has  been  held  even  if  it  is  not  shown  that  the  prisoner 
was  connected  with  the  perpetration  of  the  fraud."  Other  courts  have 
ruled  that  a  pardon  obtained  by  fraud  can  only  be  declared  void  "in  a 
proceeding  authorized  by  law,  before  a  court  having  jurisdiction  for  the 
purpose,  with  ample  apportunity  to  the  person  holding  the  pardon  to 

1  Hunnicutt  v.  State,  i8  Tex.  App.  498.         s  Ex  parte  Powell,  73  Ala.  517. 

2  In  re  De  Puy,  Fed.  Cas.  No.  3814.  ^  In  re  Greathouse,  Fed.  Cas.  No.  5741. 

3  Commonwealth  v.  Halloway,  44  Pa.  210.       i  In  re  Victor,  3 1  Ohio  St.  206. 

•<  In  re  De  Pu}^  Fed.  Cas.  No.  3814.  *  Sterling  v.  Drake,  29  Ohio  St.  457. 

9  Commonwealth  v.  Halloway,  44  Pa.  210;  Commonwealth  v.  Kelly,  9  Phila.  586; 
Rosson  V.  State,  23  Tex.  App.  287. 

"  Commonwealth  v.  Halloway,  44  Pa.  210. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      123 

defend."'  The  mere  allegation  that  a  pardon  was  fraudulently  obtained 
is  not  sufficient  to  warrant  its  revocation.  Such  facts  should  only  be 
determined  in  a  judicial  hearing.^  In  a  case  where  a  pardon  was  revoked 
because  apparently  (prima  facie)  it  was  obtained  by  fraud,  affidavits 
were  presented  which  rebutted  this  presumption.  Under  these  condi- 
tions it  was  held  that  the  pardon  was  again  in  full  effect  since  the  pre- 
sumption of  fraud  had  been  removed.^  It  seems  to  be  held  generally 
that  a  pardon  which  is  not  void  in  its  origin  nor  by  reason  of  fraud  and 
which  has  been  delivered  and  accepted  cannot  be  revoked.-* 

VALIDITY   OF   CONTRACT   TO   PROCURE   PARDON 

In  spite  of  a  general  aversion  in  some  states  to  attorneys  interesting 
themselves  in  the  business  of  securing  pardons,  yet  it  is  generally  held 
that  the  employment  of  an  attorney  for  such  purpose  is  valid  if  the  service 
is  such  only  as  may  properly  be  performed  by  an  attorney-at-law.  The 
appearance  of  an  attorney  under  these  conditions  is  not  considered  as 
being  against  pubHc  poHcy.^  Nor  is  the  engagement  of  an  attorney 
for  such  purpose  illegal  if  compensation  is  contingent  on  success.^  But 
if  the  use  of  personal  influence  is  intended  then  such  a  contract  is  usually 
regarded  as  being  against  pubHc  pohcy.  A  contract  to  secure  signers 
to  a  petition  soUciting  a  pardon  has  been  held  to  be  illegal  and  unenforce- 
able.7  The  execution  of  a  note  by  a  convict  to  a  prosecutrix  on  condition 
that  she  sign  a  petition  for  a  pardon  has  been  held  to  be  illegal  because 
contrary  to  pubHc  policy.*  This  same  view  has  also  been  taken  by 
Kansas  courts."  One  who  under  an  illegal  contract  has  paid  money 
to  secure  a  pardon  cannot  recover  such  money  after  the  contract  has 
been  executed."  But  it  has  been  held  to  be  otherwise  in  one  state  if 
the  contract  is  unexecuted." 

*  Knapp  V.  Thomas,  39  Ohio  St.  377.  '  Ex  parte  Rice,  162  S.W.  891. 
^  Ex  parte  Rosson,  24  Tex.  App.  226. 

*  Ex  parte  Crump,  135  P.  428;  State  v.  Nichols,  26  Ark.  74;  Ex  parte  Powell, 
73  Ala.'  517;  Ex  parte  Reno,  66  Mo.  266;  Rosson  v.  State,  23  Tex.  App.  287;  Ex  parte 
Alvarez,  50  Fla.  24. 

s  Formby  v.  Pryor,  15  Ga.  258;  Meadow  v.  Bird,  22  Ga.  246;   Moyer  v.  Cantieny, 
41  Minn.  242;  Chadunck  v.  Knox,  31  N.H.  226;  L.R.A.  1916  D.  p.  580. 
^ Moyer  v.  Cantieny,  41  Minn.  242. 
''  Hatzfield  v.  Gulden,  7  Watts  (Pa.)  152. 

*  Haines  v.  Lewis,  54  Iowa  301. 

'  Wm.  Deering  &*  Co.  v.  Cunningham,  63  Kan.  174. 

"  O'Reilly  v.  Cleary,  8  Mo.  App.  186.       "  Adams  Express  Co.  v.  Reno,  48  Mo.  264. 


124     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

SOME   EFFECTS   OF   A   PARDON 

A  pardon  has  been  described  as : 

An  exercise  of  sovereign  clemency  toward  the  guilty,  and  not  of  justice 
toward  the  innocent.  It  operates  prospectively  only,  by  terminating  the 
penalty  and  giving  the  person  pardoned  a  new  credit  and  capacity,  but  does  not 
entitle  the  person  pardoned  to  restitution  or  indemnity.' 

A  pardon  which  is  general  in  character  restores  one's  full  rights  and 
relieves  from  all  disabiUties  which  may  have  been  incurred  by  reason  of 
his  conviction.^  But  where  a  specific  offense  is  mentioned  in  a  pardon, 
the  pardon  is  limited  to  such  offense  and  does  not  remove  a  penalty 
imposed  for  any  other  offense.-'  For  instance,  a  pardon  for  an  assault 
which  resulted  in  the  offense  of  murder  being  committed  because  of  the 
death  of  the  assaulted  person  would  not  operate  as  a  pardon  for  murder.'' 
An  act  restoring  the  rights  of  citizenship  to  a  convict  does  not  operate 
as  a  pardon.s  Also  permission  by  a  mayor  to  a  person  to  remain  in 
town  during  good  behavior  is  not  a  pardon.^  On  the  other  hand  a  person 
may  be  pardoned  for  an  offense  and  yet  not  be  restored  to  citizenship 
unless  the  pardon  specifically  provides  for  such  restoration.''  Apparently 
judicial  opinion  is  not  entirely  agreed  as  to  the  effects  of  a  pardon  on 
civil  rights,  for  in  a  federal  decision  it  is  said  that  a  pardon  restores  to 
civil  rights,  to  the  right  to  sue,  to  do  miUtary  duty,  to  vote,  to  hold 
office,  and  to  the  enjoyment  of  property.*  But  an  lUinois  decision 
rules  that  under  a  statute  providing  that  every  person  convicted  of 
larceny  shall  be  considered  infamous,  and  is  forever  incapable  of  holding 
office,  voting,  etc. ;  a  pardon  does  not  remove  these  disabihties  that  are 
imposed  by  the  statute.^  There  is  agreement,  however,  that  an  office 
forfeited  for  conviction  of  crime  is  not  restored  through  the  grant  of 
a  pardon.'" 

'  Cook  V.  Freeholders  of  Middlesex  Co.,  26  N.J.  Law  326. 
» State  V.  Foley,  15  Nev.  64;  Wood  v.  Fitzgerald,  3  Or.  568. 

3£x  parte  Weiner,  Fed.  Cas.  No.  17362;   Hawkins  v.  State,  i  Port.  (Ala.)  475; 
State  V.  Creech,  i  Mo.  App.  370;  State  v.  Foley,  15  Nev.  64. 
"  Commonwealth  v.  Rohy,  29  Mass.  (12  Pick.)  496. 
5  People  V.  Bowen,  43  Cal.    39.  *  Blanc  v.  Rodger s,  49  Cal.  15. 

7  Ex  parte  Higgins,  14  Mo.  App.  601;  People  v.  Potter,  i  Edm.  Sel.  Cas.  (N.Y.)  235. 

8  Hart's  Adm'r.  v.  United  States,  15  Ct.  CI.  414. 

9  Foreman  v.  Baldwin,  24  111.  298. 

"£:«;  parte  Garland,  4  Wall.  2,zy,  Edwards  v.  Commonwealth,  78  Va.  39;  State  v. 
Carson,  27  Ark.  469;  Commonwealth  v.  Fugate,  2  Leigh  (Va.)  724;  State  v.  Parks,  122 
Tenn.  230. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      125 

A  person  engaged  in  rebellion  is  not  relieved  from  civil  responsibility 
for  trespass  against  private  individuals,  even  if  he  has  complied  sub- 
sequently with  the  requirements  of  a  general  amnesty  proclamation.' 
A  pardon  granted  by  the  federal  government  to  rebels  does  not  permit 
an  attorney  to  resume  his  practice  of  law  in  the  state  in  which  he  was 
admitted  before  the  rebellion  unless  he  first  takes  a  certain  oath  which 
all  attorneys  are  required  to  take  according  to  a  state  statute.^  It  has 
also  been  ruled  that  a  pardon  granted  to  an  attorney  for  forgery  does  not 
prevent  his  professional  disbarment.-' 

Regarding  the  effect  of  a  pardon  on  the  domestic  relations  it  has 
been  held  that  when  a  man  was  pardoned  from  a  life-sentence  his  rights 
and  duties  as  a  parent  were  restored.  Therefore  he  had  the  right  to  the 
custody  of  his  infant  children,  who,  during  his  civil  death,  have  been 
under  the  control  of  a  guardian.  But  the  pardon  did  not  annul  the 
second  marriage  of  his  wife,  nor  did  it  annul  the  sale  of  his  property  by 
a  person  appointed  to  administer  his  estate.  Neither  did  it  devest  his 
heirs  of  the  interest  they  acquired  in  his  estate  because  of  his  civil  death.'' 
Likewise  where  a  statute  gave  a  wife  the  right  to  a  divorce  upon  the  con- 
viction of  her  husband  of  moral  turpitude,  this  right  was  not  affected  by 
a  pardon  granted  after  conviction. ^  A  pardon  for  a  first  offense  does  not 
prevent  an  enhanced  or  increased  punishment  for  conviction  of  a  subse- 
quent offense.  This  view  is  based  on  the  belief  that  an  enhanced 
penalty  for  a  subsequent  offense  is  not  a  new  punishment  for  a  prior 
offense.* 

RELATION    OF    PARDON    TO    COSTS,    FINES,    FORFEITURES,    AND    PENALTIES 

It  has  generally  been  held  that  when  a  defendant  in  a  criminal 
prosecution  has  been  adjudged  to  pay  the  costs  he  is  not  released  from 
such  liability  by  receiving  an  unconditional  pardon.  This  view  is  based 
on  the  principle  that  the  right  to  these  costs  is  a  vested  right  which  can 
in  no  manner  be  lessened  or  cancelled  by  executive  action.''    And  the 

\Hcdges  V.  Price,  2  W.Va.  122.  ^  In  re  Deming,  10  Johns.  232,  483. 

'  Ex  parte  Hunter,  2  W.Va.  122.  s  Hollo'u:ay  v.  Holloway,  55  S.E.  191. 

3  Nelson  v.  ConwwnwcaUli,  109  S.W.  337. 

*  Mount  V.  Commonwealth,  2  Duv.  (Ky.)  94;  People  v.  Price,  53  Hun.  185;  Henidon 
V.  Commonwealth,  105  Ky.  197;  Contra.  State  v.  Martin,  59  Ohio  St.  212;  Edwards  v. 
Commonwealth,  78  Va.  39. 

T  Edwards  v.  State,  12  Ark.  122;  State  v.  F.rlcy,  8  Blackf.  229;  Estep  v.  Lacy^ 
35  Iowa  419;  In  re  Boyd,  34  Kan.  570;  HoUiday  v.  People,  10  111.  214;  Cook  v.  Free- 
holders of  Middlesex  Co.,  26  N.J.  Law  326;  Cole  v.  State,  84  ."Xrk.  473;  Ex  parte  Mann, 
39  Te.x.  Cr.  R.  491;  State  v.  Garrett,  135  Tenn.  617;  Terrell  v.  Slate,  148  P.  822; 
V mines  v.  State,  151  S.W.  1023. 


126     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

court  may  remand  a  pardoned  convict  to  jail  until  he  pays  or  works 
out  the  costs,  for  such  imprisonment  is  no  part  of  the  punishment  for 
which  the  pardon  is  granted/  But  it  has  been  held  that  a  pardon 
before  conviction  is  a  bar  to  judgment  against  the  defendant  for  costs 
and  witness  fees,  whereas  when  granted  after  judgment  it  does  not  release 
him  from  such  liabiUty.^ 

A  pardon  does  not  have  a  retroactive  effect.  It  does  not  indicate 
nor  admit  that  the  judgment  of  conviction  was  erroneous,  nor  that  the 
imprisonment  suffered  as  a  result  thereof  was  illegal.  Therefore  it 
does  not  give  the  recipient  of  the  pardon  the  right  to  sue  for  damages.^ 

It  is  generally  held  that  a  pardon  by  the  executive  will  release  all 
lines  levied.''  Such  action  has  been  upheld  even  when  the  fines  were 
due  to  the  county  and  not  to  the  state.^  It  has  also  been  held  that  the 
secretary  of  the  treasury,  under  law,  may  in  certain  cases  remit  fines 
and  penalties.  The  practice  of  granting  remission  of  penalties  by  other 
officials  than  the  President  has  been  sanctioned  by  statute  and  acquiesced 
in  for  over  a  century  and  has  therefore  been  recognized  as  vaUd  by  the 
federal  courts.'' 

A  fine  can  be  remitted  upon  the  grant  of  a  pardon  if  it  has  not  become 
a  vested  right.  It  may  be  remitted  after  it  has  been  paid  to  a  sheriff 
if  it  has  not  been  paid  into  the  county  treasury  nor  charged  to  the  sheriff 
in  auditing  his  account.'  But  a  fine  cannot  be  recovered  upon  the  grant 
of  a  pardon  after  it  has  been  paid  to  the  treasurer  of  a  board  of  education 
according  to  statute.*  When  an  informer  is  entitled  to  a  part  of  the  fine 
imposed  it  is  a  vested  right  and  is  not  devested  by  the  grant  of  a  pardon.' 

All  rights  of  property  confiscated  may  be  restored  by  the  president 
of  the  United  States  through  the  issuance  of  a  pardon  if  such  property 
has  not  become  vested  in  another  through  judicial  proceedings.'"  But 
property  which  had  been  sold  under  the  confiscation  act  was  not  restored 
by  the  president's  proclamation  of  amnesty,  December  25, 1868."    When 

'  In  re  Boyd,  34  Kan.  570;  State  v.  Spellings,  99  Tenn.  201. 

^  Duncan  v.  Commonwealth,  4  Serg.  &  R.  (Pa.)  449;  Commonwealth  v.  Hitchman, 
46  Pa.  357;  White  v.  State,  42  Miss.  635. 

3  Roberts  v.  State,  160  N.Y.  217. 

f  Common-wealth  v.  Shisler,  2  Phila.  256;  Parrott  v.  Wilson,  51  Ga.  255;  Contra. 
Cook  V.  Freeholders  of  Middlesex  Co.,  26  N.J.  Law  326. 

5  Cope  V.  Commonwealth,  28  Pa.  297.  '  Fischel  v.  Mills,  55  Ark.  344. 

*  The  Laura,  114  U.S.  411.  *  Byrum  v.  Turner,  87  S.E.  975. 

9  Rowe  V.  State,  2  Bay  (S.C.)  565;  In  re  Flournoy,  i  Ga.  606. 

"  Osburn  v.  Utiiled  States,  91  U.S.  474.       "  Wallach  v.  Van  Riswick,  92  U.S.  202. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER      127 

the  proceeds  of  such  sale  had  been  paid  into  the  treasury  of  the  United 
States  they  were  regarded  as  having  become  vested  in  the  United  States.' 
It  has  been  held  in  some  federal  cases  that  a  pardon  granted  by  the 
president  has  the  effect  of  remitting  the  whole  penalty  even  when  an 
informer  was  entitled  by  law  to  a  moiety  of  the  judgment.^ 

CONDITIONAL  PARDON 

It  is  generally  agreed  that  the  pardoning  authority  may  grant 
conditional  pardons  as  well  as  absolute  pardons.  In  a  conditional 
pardon  the  conditions  annexed  are  either  precedent  or  subsequent. 
If  the  grantee  does  not  perform  the  conditions  precedent  the  pardon 
does  not  take  effect;  if  he  does  not  perform  the  conditions  subsequent 
the  pardon  becomes  null.  Consequently  if  the  conditions  are  not 
performed  the  original  sentence  remains  in  full  force.^  It  has  been  said 
that  when  a  conditional  pardon  is  granted  the  conditions,  to  be  operative, 
should  appear  on  the  face  of  the  pardon.'*  The  conditions  attached  to 
a  pardon  must  not  be  immoral,  illegal,  or  impossible.^  One  court  has 
said  that  where  the  conditions  are  of  this  character  the  pardon  becomes 
absolute.^  When  a  conditional  pardon  is  accepted  by  a  convict  it  is 
a  contract  between  him  and  the  state  according  to  this  same  state  court. ^ 

Any  punishment  recognized  by  the  common  law  or  statute  as  enforced 
in  a  state  may  be  annexed  as  a  condition  to  a  pardon  with  the  consent 
of  the  prisoner.*  One  condition  often  attached  has  been  that  the  prisoner 
shall  leave  the  state.'  One  court  has  ruled  that  if  a  prisoner  compUes 
with  such  a  condition  but  afterward  returns  to  the  state,  he  is  not  liable 
to  be  reimprisoned  if  the  conditional  pardon  does  not  forbid  his  return.'" 
The  expediency  of  granting  a  conditional  pardon  on  condition  that  the 

'  K)wtc  V.  United  Stales,  95  U.S.  149. 

'  United  States  v.  Thomasson,  Fed.  Cas.  No.  16479;  Contra.  United  Stales  v. 
Lancaster,  Fed.  Cas.  No.  15557. 

3  In  re  Flavell,  8  Watts  &  Sergeant  (Pa.)  197;  Ex  parte  Alvarez,  50  Fla.  24. 
■"  Ex  parte  Reno,  66  Mo.  266. 

^  Lee  V.  Murphy,  22  Grat.  789;  State  v.  Barnes,  32  S.C.  14;  People  v.  Marsh, 
125  Mich.  410. 

^People  V.  Potter,  i  Edm.  Sel.  Cas.  (N.Y.)  235. 

T  People  V.  Potter,  i  Edm.  Sel.  Cas.  235.  *  Lee  v.  Murphy,  22  Grat.  789. 

»£x  parte  Lockhart,  i  Disn.  (Ohio)  105;  CommonweaUh  v.  Haggerty,  4  Brewst. 
(Pa.)  326;  State  v.  Smith,  Bailey  (S.C.)  283;  Slate  v.  Barnes,  32  S.C.  14;  Contra. 
Commonwealth  v.  Hatsfield,  i  Clark  (Pa.)  177;  Commonwealth  v.  Fowler,  4  Call.  (Va.) 

35- 

"  £.v  parte  Hunt,  10  .\rk.  284. 


128     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

recipient  forever  leave  the  state  may  be  open  to  question,  especially 
if  he  be  a  native  of  the  state.  Each  state  should  face  its  own  criminal 
problem.  Ridding  itself  of  its  criminal  element  in  this  manner  involves, 
probably,  a  violation  of  state  comity. 

Other  conditions  attached  to  pardons  have  also  been  upheld.  A 
condition  in  one  pardon  that  the  person  receiving  it  should  claim  neither 
his  property  nor  the  proceeds  thereof  that  had  been  sold  under  the 
confiscation  laws  of  the  United  States  by  decree  of  court  was  held  to 
preclude  his  recovery  of  the  same.^  A  pardon  granted  on  condition  of 
payment  of  a  fixed  sum  of  money  to  a  county  has  been  held  to  be  vaUd.^ 
A  pardon  granted  on  condition  that  the  grantee  shall  wholly  abstain 
from  the  use  of  intoxicating  liquors  for  five  years  was  upheld  as  valid. ^ 
But  when  a  convict  was  pardoned  upon  the  condition  that  he  would 
refrain  from  the  use  of  such  liquor  it  was  held  not  to  be  a  breach  of  his 
pardon  if  he  used  liquor  after  the  expiration  of  the  time  for  which  he 
was  sentenced.-"  In  Oregon  conditional  pardons  are  always  granted  on 
condition  that  the  person  receiving  the  same  shall  be  and  remain  a  law- 
abiding  citizen.  A  pardon  of  this  character  has  been  held  vaUd  and 
proper.5 

There  should  be  a  strict  compliance  with  the  terms  of  a  conditional 
pardon  by  one  who  claims  its  benefits.  The  proof  that  such  conditions 
have  been  fully  performed  should  be  clearly  shown.^  Such  conditions 
must  be  performed  before  the  pardon  is  of  any  effect.  A  condition  in  a 
pardon  that  an  oath  was  to  be  taken  after  its  grant  was  not  fulfilled 
by  showing  that  a  similar  oath  had  been  taken  before  its  issue. '^  A 
pardon  from  sentence  of  imprisonment  on  condition  of  paying  a  fine 
and  costs  is  of  no  effect  until  such  fine  and  costs  are  paid.*  Likewise  a 
pardon  conditioned  on  payment  of  costs  and  perpetual  abstinence 
from  engaging  in  the  saloon  business  is  void  unless  compUance  is  made 
with  the  conditions.^    A  pardon  has  generally  been  held  void  if  a  person 

'  United  States  v.  Six  Lots  of  Groutid,  Fed.  Cas.  No.  16299. 

2  People  V.  Marsh,  125  Mich.  410. 

3  People  V.  Burns,  77  Hun.  (N.Y.)  92. 

4  Huff  V.  Dyer,  4  Ohio  Cir.  Ct.  R.  595. 
s  Ex  parte  Houghton,  89  P.  801. 

^  Haytn  v.  United  States,  7  Ct.  CI.  443;  Waring  v.  United  States,  7  Ct.  Ci.  501; 
Scott  V.  United  States,  8  Ct.  CI.  457. 

7  Haym  v.  United  States,  7  Ct.  CI.  443. 
*  In  re  Ruhl,  Fed.  Cas.  No.  121 24. 
9  McKay  v.  Woodruff,  77  Iowa  413. 


SOME  LEGAL  ASPECTS  OF  THE  PARDONING  POWER     129 

who  accepts  it  on  condition  that  he  leave  the  state  or  United  States  is 
again  found  in  such  state  or  country.' 

When  a  prisoner  has  been  released  on  a  conditional  pardon  the  time 
he  has  been  at  liberty  is  not  counted  as  time  served  on  his  sentence  if 
he  is  recommitted  to  serve  the  remainder  of  the  sentence  because  of 
violation  of  the  terms  of  the  pardon.^ 

A  conditional  pardon  is  of  the  same  effect  as  if  its  terms  were  absolute 
when  a  convict  has  fulfilled  all  the  conditions  annexed  thereto.^  In  one 
case  a  person  received  a  pardon  for  the  sole  purpose  of  restoring  his 
citizenship.  It  was  granted  after  he  had  served  his  full  term  and  on 
condition  that  it  might  be  revoked  if  he  violated  any  crimina'  laws  of 
the  state.  The  condition  in  the  pardon  was  held  to  be  void  for  the 
reason  that  the  state  constitution  provided  that  no  one  could  be  deprived 
of  his  citizenship  as  it  related  to  his  right  to  hold  office,  sit  upon  juries, 
testify  in  court,  and  exercise  the  franchise  except  upon  the  conviction 
of  a  felony.''  But  when  a  pardon  has  been  issued  to  one  convicted  of 
defrauding  the  United  States  government  of  public  lands  upon  condition 
that  he  make  reparation  to  the  satisfaction  of  the  United  States  district 
attorney,  such  pardon  does  not  enable  this  official  to  pledge  the  govern- 
ment to  compensate  the  grantee  for  the  improvements  made  and  the 
taxes  paid  on  such  property.  ^ 

It  has  been  held  that  a  judicial  determination  was  unnecessary  to 
recommit  a  prisoner  who  had  been  granted  a  pardon  on  the  condition 
tha'.  if  he  violated  its  terms  he  was  liable  to  summary  arrest  and  re- 
imprisonment,  and  that  the  governor's  judgment  should  be  conclusive 
as  to  whether  the  conditions  of  the  pardon  had  been  violated.^  When 
a  statute  provides  for  recommitment  under  similar  conditions,  such  a 
law  has  also  been  held  valid.'  But  these  forms  of  action  do  not  furnish 
the  exclusive  means  for  determining  whether  there  has  been  a  breach 
of  the  pardon  contract.     Such  contract  may  be  annulled  by  any  court  of 

^People  V.  Potter,  i  Parker  Cr.  R.  47;  Ex  parte  Lockhart,  i  Disn.  (Ohio)  105; 
State  V.  Fuller,  i  McCord  (S.C.)  178;  State  v.  Smith,  i  Bailey  (S.C.)  283;  State  v. 
Addington,  2  Bailey  516. 

'  People  V.  Hayes,  118  N.Y.S.  42;  Ex  parte  McKenna,  79  Vt.  34;  State  v.  Barnes, 
32  S.C.  14;  Contra.  Ex  parte  Prout,  12  Idaho  494. 

3  Ex  parte  Alvarez,  50  Fla.  24. 

4  Taylor  v.  State,  41  Te.x.  Cr.  R.  148. 

5  Bradford  v.  United  States,  228  U.S.  446. 

6  Ex  parte  Houghton,  89  P.  801;  Arthur  v.  Craig^  48  Iowa  264. 

7  In  re  Kennedy,  135  Mass.  48. 


I30     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

competent  jurisdiction  after  it  has  investigated  the  alleged  violations 
of  the  conditions  of  the  pardon.^ 

But  unless  recommitment  is  provided  for,  either  by  statute  or  by  the 
terms  of  the  pardon,  a  person  cannot,  it  is  held,  be  recommitted  by  order 
of  a  governor  or  pardon  board  without  a  judicial  hearing  where  he  may 
show  either  that  he  is  not  the  same  person  who  was  convicted  and 
pardoned,  or  that  he  has  performed  the  conditions  annexed  to  the  pardon, 
or  that  he  has  a  proper  legal  cause  for  not  having  Hved  up  to  the  condi- 
tions imposed.^  If  the  prisoner  denies  that  he  is  the  person  who  was 
pardoned  he  is  entitled  to  a  jury  trial  to  determine  such  issue.^  A 
difference  of  opinion  exists  as  to  whether  a  jury  trial  may  be  demanded 
for  the  determination  of  other  facts  and  issues  connected  with  recom- 
mitment.'' 

Unless  the  method  of  determining  whether  there  has  been  a  violation 
of  a  pardon  has  been  definitely  prescribed  by  statute  the  ordinary 
practice  is  for  some  court  of  general  criminal  jurisdiction,  when  its 
attention  is  called  to  an  alleged  violation, 

to  issue  a  rule  reciting  the  conviction  and  sentence,  the  pardon  and  its  condi- 
tions, and  the  alleged  violation,  and  requiring  the  sheriff  to  arrest  the  convict 
and  serve  a  copy  of  the  rules  on  him,  ....  and  if  the  facts  are  found  for  the 
convict  he  should  be  discharged ;  otherwise  he  should  be  remanded  to  custody 
and  ordered  to  have  the  original  sentence  imposed  upon  him  duly  executed.^ 

From  the  foregoing  summary  of  the  legal  aspects  of  the  pardoning 
power  it  is  evident  that  a  body  of  precedent  has  been  well  estabUshed 
for  the  judicial  dealing  with  clemency.  This  is  quite  in  contrast  with 
the  irregular  methods  that  prevail  with  the  administrative  features  of 
this  problem. 

'  Hettderson  v.  Stale,  46  So.  151. 

'  People  V.  Moore,  62  Mich.  497;  State  v.  Wolfer,  53  Minn.  135;  Ex  parte  Alvarez, 
50  Fla.  24;  State  v.  Home,  42  So.  388. 

3  State  V.  Home,  42  So.  388. 

*  Ex  parte  Alvarez,  50  Fla.  24;  State  v.  Home,  42  So.  388;  State  v.  Chancellor, 
I  Strob,  (S.C.)  347;  Contra.  People  v.  Bums,  77  Hun.  (N.Y.)  92. 

5  Ex  parte  Alvarez,  50  Fla.  24. 


BIBLIOGRAPHY 

Alabama.    Report  of  Board  of  Pardons,  October  i,  igi§ 

.     Report  of  Board  of  Pardons  for  Year  ending  September  jo,  igi6 

.     Report  of  Board  of  Pardons,  October  i,  igiy,  to  December  ji,  igiy 

.     Rules  of  Board  of  Pardons 

American  Decisions  {see  Pardons,  Paroles,  etc.) 

American  State  Reports  {see  Pardons,  Paroles,  etc.) 

Bacon,  Francis.     Essays  (edited  by  Joseph  Devey) 

"Bank-Wrecking  and  Clemency,"  Nation,  XCII,  547  (editorial) 

Barbour,  James  J.  The  Illinois  Parole  Law  (ig2o).  Published  by  Depart- 
ment of  Public  Welfare  of  Illinois 

Barbour,  L.  L.  Indeterminate  Sentence,  "Publications  of  Michigan  Political 
Science  Association,"  Vol.  Ill,  No.  3 

Barnes'  Federal  Code,  1919 

Bamett,  James  D.  "Grounds  of  Pardon  in  the  Courts,"  Yale  Law  Journal, 
XX,  131 

.     "Executive,  Legislative,  and  Judiciary  in  Pardon,"  American  Law 

Review,  XLIX,  684 

Bentham,  Jeremy.     Principles  of  Penal  Law 

Berry,  W.  H.  "The  Indeterminate  Sentence  from  the  Standpoint  of  the 
Board  of  Parole,"  Proceedings  American  Prison  Association,  igij,  p.  228 

Bishop.     Criminal  Law,  7th  edition 

.     Criminal  Procedure 

.     New  Criminal  Law 

Blacks  tone's  Commentaries 

Bracton  (Twiss's  translation) 

California.     Debates  and  Proceedings  of  Constitutional  Convention,  iSjS-jg 

• — .    Sixty-eighth  and  Sixty-ninth  Biennial  Report  of  State  Board  of  Prison 

Directors,  igij-iS 

.     Eighih  Biennial  Report  of  State  Board  of  Charities  and  Corrections, 


J.uly  I,  igi6 — June  jo,  igi8 

— .     Rules  Governing  Application  for  Executive  Clemency 
— .     Prison  Laws,  1909 

— .     Pardon  and  Clemency  Records  in  Executive  Office 
— .    Senate  Daily  Journal,  January  14,  1919 


Coke's  Institutes 

Colorado.     Biennial  Reports  of  State  Board  of  Pardons 

.     Eighih  Biennial  Report,  igoy-igo8 

.     Ninth  Biennial  Report,  igog-igio 

.     Tenth  Biennial  Report,  igii-igi2 

131 


132     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Colorado.     Thirteenth  Biennial  Report,  December  i,  igi6 — November  jo,  igi8 
Biennial  Reports  of  State  Penitentiary 
Twentieth  Biennial  Report  ending  November  jo,  igi6 
Twenty-first  Biennial  Report  ending  November  jo,  igi8 
Records  of  Pardons,  etc.,  in  Office  of  Secretary  of  Board  of  Pardons 
Senate  journals  for  1911,  1913,  1915,  1917,  1919 
House  journals  for  1911,  1917 


Colvin,  Will.     "The  Parole  Law — Its  Accomplishments,"  Biennial  Report  of 

Illinois  Division  of  Pardons  and  Paroles,  igi8-2o 

.     "After-Care,"  Proceedings  of  American   Prison  Association,   igig, 

P-  511 

"Industrial  Parole,"  Proceedings  of  American   Prison  Association, 


igig,  p.  483 

Connecticut.     Rules  of  Board  of  Pardons 

Cooley,  T.  M.     Constitutional  Limitations.     6th  edition 

Crossley,  F.  B.  "Executive  Nullification  of  Judicial  Decrees,"  Journal  of 
Criminal  Law  and  Criminology,  IV,  646 

Davis,  Katherine  B.  "Probation  and  Parole,"  Journal  of  Criminal  Law  and 
Criminology,  VII,  165 

Digest  of  State  Constitutions.  Prepared  for  New  York  State  Constitutional 
Convention,  191 5 

Eden,  WiUiam.     Principles  of  Penal  Law 

Federalist,  The.     (Ford  edition)  No.  94 

Ferris,  Governor  W.  N.  Report  to  Forty-ninth  Legislature  of  Michigan  Con- 
cerning Clemency.    January,  191 7 

Finley  and  Sanderson.     American  Executive  and  Executive  Methods 

Fort  Wayne  Jaurnal-Gazette 

Foster,  Sir  Michael.     Discourse  on  High  Treason 

Freund,  Ernst.     Standards  of  American  Legislation 

Georgia.  Joint  Rules  of  the  Governor  and  the  Prison  Commission  Governing 
Applications  for  Executive  Clemency 

Governors'  Conference  Proceedings  for  1912,  1913,  1915 

Gray,  Russell.  "The  Use  and  Abuse  of  the  Pardoning  Power,"  International 
Review,  VII,  498 

Hadley,  Governor  Herbert  S.  Report  to  Forty-Seventh  Missouri  Assembly 
concerning  Reprieves,  Commutations,  Pardons,  igij 

Hale,  Sir  Mathew.     Historica  Placitorum  Coronae 

Hale,  Richard  W.  "Injunctions  and  Pardons,"  American  Law  Review,  XLIII, 
192 

Hallam,  Heniy.     The  Middle  Ages 

Halsbury.     History  of  Laws  of  England 

Hawkins,  Sir  William.     A  Treatise  of  the  Pleas  of  the  Crown 

Heacox,  Frank  L.  "Parole  Violators.  A  Study  of  One  Year's  Parole  Vio- 
lators Returned  to  Auburn  Prison,"  Journal  of  Criminal  Law  and  Crimi- 
nology, VIII,  233 


BIBLIOGRAPHY  133 

Healy,  William.     The  Individual  Delinquent 

Henderson,  C.  R.     Dependents,  Defectives,  and  Delinquents 

Henderson,  C.  R.  ed.     Correction  and  Prevention.     Russell  Sage  Foundation. 

4  vols. 
HUl,  David  B.     "The  Pardoning  Power,"  North  American  Review,  CLIV,  50 
Hobbes,  Thomas.     Leviathan 

Holcombe,  A.  N.     State  Government  in  the  United  States 
Idaho.     Biennial  Report  of  Idaho  State  Penitentiary,  igij-iQi6 

■ .     Biennial  Report  of  Idaho  State  Penitentiary,  igij-igiS 

.     Rules  Governing  Prisoners  on  Parole 

.     Records  of  State  Board  of  Pardons  in  Office  of  Secretary  of  State 

Illinois.     Debates  and  Proceedings  of  Conslitutional  Convention,  1870 

.     Rules  Controlling  AppHcations  for  Pardons 

.     Report  of  Department  of  Public  Welfare,  IQ18.     (Containing  Reports 

of  Division  of  Pardons  and  Paroles  and  Division  of  Prisons) 
.     Biennial  Report  of  Division  of  Pardons  and  Paroles,  September  jo, 

1 918,  to  September  jo,  ig2o 

Rules  and  Laws  Controlling  the  Division  of   Pardons  and  Paroles 


(1919) 

Iowa.     Constitutional  Debates,  1857 
.     Report  by  Governor  concerning  Pardons,  Suspensions,  Commutations, 

etc.,  191 5-16 
.     Report  by  Governor  concerning  Pardons,  Suspensions,  Commutations, 

etc.,  1 917-18 
.     Report  of  Iowa  Board  of  Parole  for  Biennial  Period  ending  June  30, 

1918 
.     Rules  of  Board  of  Parole 


Jefferson,  Thomas.     Notes  on  Virginia 

Johnson,  Alexander.  Report  on  Care  of  Dependents,  Delinquents,  and  Defec- 
tives including  Report  on  the  State  Board  of  Charities  and  Corrections  of 
Colorado 

Johnson,  Governor  Hiram.  Biennial  Messages  of  1913,  1915,  1917.  to  Legis- 
lature of  State  of  California 

"Justice,  Not  Sentimentality,"  Outlook,  XCVIII,  332  (editorial) 

Kentucky.     Debates  of  Kentucky  Constitutional  Convention,  iSgo 

Kilbride,  Thomas  M.  "Probation  and  Parole  in  Their  Relation  to  Crime," 
Journal  of  Criminal  Law  and  Criminology ,  VII,  173 

Larremore,  Wilbur.  "Constitutional  Regulation  of  Contempt  of  Court," 
Harvard  Law  Review,  XIII,  615 

Lawyers'  Reports  Annotated  (L.R.A.)  {see  Pardons,  Paroles,  etc.) 

Lewis,  B.  G.     The  OJfcnder 

Lieber,  Francis.  "Reflections  on  the  Present  Constitution  of  New  York, 
1867."     In  his  Miscellaneous  Writings,  II,  185 

.     Civil  Liberty  and  Self-Govcrnment 


134     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Lindsey,  Edward  (Chairman  of  Committee  of  American  Institute  of  Criminal 

Law  and  Criminology).     "Report  of  Committee  on  Indeterminate  Sen- 
tence, Release  on  Parole  and  Pardon,"  Journal  of  Criminal  Law  and 

Criminology,  1,  s;    V,  799;    VI,  807;    VII,  492;    VIII,  491;    IX,  534; 

X,  223 
Louisiana.     Rules  Governing  Applications  for  Pardons,  etc. 
Lyon,  F.  E.     "Truth  about  the  Parole  Law  in  Illinois,"  Journal  of  Criminal 

Law  and  Criminology,  IX,  482 
Massachusetts.     Constitutional  Debates,  1853 

.     Third  Annual  Report  of  Bureau  of  Prisons  for  Year  igi8 

.     Report  of  Board  of  Parole,  IQIQ 

Mathews,  J.  M.     Principles  of  American  State  Administration 

McClure,  J.  E.     The  Parole  Law  {of  Illinois)  and  Its  Administration.     Pub- 

Kshed  by  Department  of  Pubhc  Welfare  of  Illinois 
Michigan.     Annual  Report  of  Advisory  Board  in  the  Matter  of  Pardons  to  the 

Governor,  igiy 

.     Rules  and  Regulations  Governing  the  Paroling  of  Prisoners 

Missouri.     Report  of  Missouri  Board  of  Pardons  and  Paroles  to  the  Governor, 

March  17,  igij,  to  January  i,  igi§ 

■ — .     Annual  Report  of  Missouri  Board  of  Pardons  and  Paroles,  igij 

Montana.     Laws,  Rules,  and  Regvilations  relating  to   the  Government  and 

Management  of  the  State  Prison 
Montesquieu.     The  Spirit  of  Laws,  Book  6,  chap.  xxi. 
Morris,  Parker  D.     "Ehgibility  for  Parole,"  Proceedings  of  American  Prison 

Association,  igig,  p.  503 
Nebraska.     Ninth  Biennial  Report  of  Nebraska  State  Board  of  Charities  and 

Correction 
Nevada.     Biennial  Messages  of  Governor  Boyle,  1915,  1917,  1919,  to  Nevada 

State  Legislature 

.     Records  of  State  Board  of  Pardons  in  Executive  Office 

.     Rules  of  the  Board  of  Pardons  and  Parole  Commissioners 

New  York.     "Statistics  from  Report  of  Board  of  Parole  for  State  Prisons," 

Journal  of  Criminal  Law  and  Criminology,  IX,  313 
North  Carohna.     Rules  Governing  Applications  for  Pardons,  Commutations, 

and  Reprieves 
Ohio.     First  and  Second  Annual  Reports  of  the  Ohio  Board  of  Clemency,  igi8, 

igig 

.     Journal  of  Ohio  Constitutional  Convention,  igiz 

Oregon.     Records  of  State  Board  of  Parole  in  Office  of  Secretary  of  State 

.     Rules  Governing  Prisoners  on  Parole 

— .     Rules  of  the  Parole  Board 

— .     Laws  A_ffecting  the  Penitentiary,  igig 

Pam,  Hugo.     Juvenile  and  Adult  Offenders  (igig).     Published  by  Department 

of  Public  Welfare  of  Illinois 


BIBLIOGRAPHY  135 

Pennsylvania.     Proceedings  and  Debates  of  Pennsylvania  Constitutional  Con- 
vention, 1837 

.     Debates  oj  Pennsylvania  Constitutional  Convention,  18J2-73 

.    Rules  of  the  Board  of  Pardons 

Pollock  and  Maitland.     History  of  English  Law 

"Power  of  the  President  to  Grant  a  General  Pardon  or  Amnesty,"  by  L.C.K., 

8  American  Law  Reg.  (N.S.),  513 
"President's  Power  to  Pardon,"  Literary  Digest,  LXV,  56 
"Power  to  Pardon,  The"  (editorial).  World's  Work,  XXV,  38 
"Punishment  for  Rich  Offenders"  (editorial),  Independent,  LXX,  1231 
Questionnaire  and  Answers.     Information  obtained  from  pardon  officials  of 

several  states 
Reinsch,  P.  S.     Readings  on  American  State  Government 
Reports  of  Federal  and  State  Courts 
Smithers  and  Thorn.     Executive  Clemency  in  Pennsylvania 
Smithers,  W.  W.     "The  Use  of  the  Pardoning  Power,"  Annals  oj  the  American 

Academy  of  Political  and  Social  Sciences,  LII,  61 
.     "Nature  and  Limits  of  the  Pardoning  Power,"  Journal  of  Criminal 

Law  and  Criminology,  I,  549 
Statutes  and  Laws  of  American  States 
Stephens,  Governor  William  D.     First  Biennial  Message  to  Legislature  of  the 

State  of  California,  igig 
Stonaker,  C.  L.     "I  Beg  Your  Pardon,"  Survey,  XXIX,  499 
Story,  Joseph.     Commentaries  on  the  Constitution 
Taft,  WiUiam  Howard.     Our  Chief  Magistrate  and  His  Power 
.     "Opinion  on  the  Power  of  the  President  to  grant  Amnesty."     In 

Opinions  of  Attorney-General,  XX,  330-45 
Thorpe,  F.  N.     American  Charters,  Constitutions,  and  Organic  Laws 
United   States.     Annual   Reports  of   the   Attorney-General   of   the    United 

States 

.     Opinions  of  the  .\ttomey-General 

.     Rules  Relating  to  Applications  for  Pardon 

Utah.     Rules  of  State  Board  of  Pardons 

.     Records  of  Board  of  Pardons  in  Offices  of  Secretary  of  State  and 

Attorney-General 
Washington.    Rules  of  Executive  Practice  in  Relation  to  Pardons,  Reprieves, 

Commutations,  etc. 
West,    Governor   Oswald.     Biennial   Message    to    Twenty-Seventh   Legislative 

Assembly  of  Oregon,  igij 
West  \'irginia.     Rules  and  Regulations  Governing   the   Pardon  Attorney  in 

Considering  Applications  for  Pardons,  Commutations,  etc. 

.    Rules  Prescribed  for  the  Parole  of  Prisoners 

Whitman,  J.  L.     Methods  and  Results  of  Administration  (of  Illinois  Parole  Law) , 

ig2o.     Published  by  Department  of  Public  Welfare  of  Illinois 


136     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 

Whitman,  J.  L.  Prison  Management  atid  Parole,  1919.  Published  by  Depart- 
ment of  PubUc  Welfare  of  Illinois 

.     The  Illinois  Idea.     Published  by  Department  of  Public  Welfare  of 

Illinois 

■ — .     "Operation  of  the  New  Parole  Law  in  Illinois,"  Journal  of  Criminal 


Law  and  Criminology ,  IX,  385 
"  Wlio  Should  Be  Permitted  to  Speak  for  or  against  Parole,  etc.  ?  "  (discussion) , 

Proceedings  of  American  Prison  Association,  1917,  p.  233 
Whyte,  E.  H.     "The  Parole  System  in  California,"  Journal  of  Criminal  Law 

and  Criminology,  VII,  i 
Williston,  Samuel.     "Does  a  Pardon  Blot  out  Guilt?"     Harvard  Law  Rev-iew, 

XXVIII,  647 
Wines,  F.  H.     Punishmeni  and  Reformatian 

Wisconsin.     Laws,  Rules,  and  Regulations  Governing  Applications  for  Pardons 
Withycombe,  Governor  James.     Message  to  the   Legislative  Assembly  of  the 

State  of  Oregon,  191 5 
Wyoming.     Biennial  Reports  of  State  Board  of  Charities  and  Reform.     191 5-16; 

1917-18 
.     Records  of  State  Board  of  Pardons   in    Office  of  State  Board  of 

Charities  and  Reform 

.     Rules  Governing  Filing  of  Applications  for  Pardon 

— ■ .     Rules  of  State  Board  of   Pardons   Relative  to  an  AppHcation  for 

Parole 

.     Rules  Governing  Conduct  of  Prisoners  on  Parole 

Senate  Journals  of  Legislature  of  Wyoming  for  1913,  1915, 1917,  1919 


Miscellaneous.     Blank  forms  of  application   for   clemency,  paroles,  pardons, 
release;   petitions;   agreements  to  employ  paroled  prisoners 
Blank  report  forms  of  wardens,  trial  judges,  prosecuting  attorneys,  con- 
victs on  parole,  etc. 


TABLE  OF  CASES 


Adams  Express  Co.v.  Reno,  48  Mo.  264, 123 
Allen  V.  McGuire,  100  Miss.  781,  114 
Alvarez,  Ex  parte,  50  Fla.  24,  i2j,  i2j, 

I2g,  130 
Arthur  v.  Craig,  48  Iowa  264,  I2q 

Bird  V.  Breedlove,  24  Ga.  623,  775 
Blanc  V.  Rodger s,  49  Cal.  15,  724 
/}«>'(/,  7«  re,  34  Kan.  570,  725,  126 
Bradford  v.  United  States, 22S  U.S.  446, 72p 
Brown  v.  Crashaw,  2  Bulst.  154,  777 
Brown  v.  Walker,  161  U.S.  591,  77(5 
Browne,  Ex  parte,  2  Colo.  553,  114 
Burdick  v.  United  States,  236  U.S.  79,  775, 

727 

Butler  V.  State,  97  Ind.  373,  118 
Byrum  v.  Turner,  87  S.E.  975,  72(5 

Ca?npion  v.  Gillan,  79  Neb.  364,  774 
Carlisle  v.  United  States,  16  Wall.  147,  775 
Carpenter  v.  Lord,  88  Or.  128,  727 
Chadwick  v.  Knox,  31  N.H.  226,  72j 
Co/c  V.  67a^t',  84  Ark.  473,  725 
Collins,  Ex  parte,  94  Mo.  22,  727 
Commonwealth  v.  Fowler,  4  Call.  (Va.)  35, 

12/ 

Commonwealth  v.  F 11  gate,  2  Leigh  (Va.) 

724, 124 
Commonwealth    v.    Haggerty,    4    Brewst. 

(Pa.)  326,  727 
Commonwealth  v.  Halloway,  44  Pa.  210, 

727, 722 

Commonwealth  v.  Hatsfield,  i  Clark  (Pa.) 

177,  727 
Commonwealth  v.  Hitchman,  46  Pa.  35  7,72(5 
Commonwealth  v.  Kelly,  9  Phila.  586,  722 
Commonwealth  v.   Lockwood,    109  Mass. 

323- ^21 
Commonwealth   v.    i?o6y,    29   Mass.    (12 

Pick.)  496,  724 
Commonwealth  v.  Shisler,  2  Phila.  256,  72(5 
Coo/t  V.  Freeholders  of  Middlesex  Co.,  26 

N.J.  Law,  326,  72.^,  725,  72(5 
Cope  y.  Commonwealth,  28  Pa.  297,  72<5 
Crump,  Ex  parte,  10  Okla.  Cr.  133,  139, 

2Q,  62,  iiQ,  123 
Cuilins,  Ex  parte,  11  Okla.  Cr.  644,  7  7p 

Deering  &*  Co.  v.  Cunningham,  63  Kan. 

174,  J23 
Deming,  In  re,  10  Johns.  232,  483,  725 
De  Puy,  In  re,  Fed.  Cas.,  No.  3814,  722 
Duncan  v.  Commonwealth,  4  Serg.  &  R. 

(Pa.)  449,  72(5 

Eastcrwood  v.  5/a/e,  34  Tex.  Cr.  R.,  400, 727 
Edwards  v.  Commonwealth,   78  Va.,  39, 
72.^,  725 


Edwards  v.  5to/e,  12  Ark.,  122,  725 
Edymoin,  In  re,  8  How.  Prac,  478, 77p,  720 
Estep  V.  Lacy,  35  Iowa  419,  125 

Fischel  v.  Mills,  55  Ark.,  344,  72(5 
Flavell,  In  re,  8  Watts  &  Sergeant  (Pa.), 

197,  727 
Flournoy,  In  re,  i  Ga.,  606,  126 
Foreman  v.  Baldwin,  24  111.,  298,  124 
Fromby  v.  Pryor,  15  Ga.,  258,  123 

Garland,  Exparte,  4Wa\l.,^^^,  ^80, 109,124 
Gilmore  v.  57a/e,  3  Okla.  Cr.,  639,  727 
Greathouse's  Case,  Fed.  Cas.  No.  5741, 
2g,  II j,  122 

Haddix  v.  Wilson,  3  Bush.,  523,  775 
Haines  v.  Lewis,  54  Iowa  301 ,  72j 
Haley  v.  Clark,  26  Ala.  439,  118 
Harlin  v.  McGourin,  218  U.S.  442,  727 
Hart's  Adm'r.  v.  United  States,  15  Ct.  CI. 

414,  724 
Hatzfield  v.  Gulden,  7  Watts  (Pa.)  152,  72j 
Hawkins  v.  State,  i  Port.  (Ala.)  475,  124 
Haym  v.  United  States,  7  Ct.  CI.  443,  72^ 
Hedges  v.  Price,  2  W.Va.  122,  725 
Henderson  v.  State,  46  So.  151,  7jo 
Henry  v.  5/a/p,  10  Okla.  Cr.  Rep.  369, 104 
Herndonv. Commonwealth,  105  Ky.  197,725 
Higgins, Ex  parte,  14M0.  App.  601,120,124 
Hinkey,  Ex  parte,  4  Smecies  &  Marshall 

751  (12  Miss.),  114 
HoUiday  v.  People,  10  111.  214,  725 
Holloicay  v.  Halloway,  55  S.E.  191,  725 
Houghton,  Ex  parte,  89  P.  801,  128,  129 
HuJJ  V.  Dyer,  4  Ohio  Cir.  Ct.  R.  595,  128 
Hunnicutt  v.  State,  18  Tex.  App.  498,  727, 

122 
Hunnicutt  v.  State,  20  Tex.  App.  632,  720 
Hunt,  Ex  parte,  10  Ark.  284,  29,  127 
Hunter,  Ex  parte,  2  W.Va.  122,  725 

Kennedy,  In  re,  135  Mass.  48,  72p 
Knapp  \.  Thomas,  39  Ohio  St.  377,  72j 
Knotev.  United  States, gs  U.S.  149, 118,127 

Laird  v.  Sims,  16  Ariz.  521,  29,  ii§ 
Laura,  The,  114  U.S.  411,  126 
Lee  \\  Murphy,  22  Grat.  789,  727 
Lockhart,  Ex  parte,  i  Disn.  (Ohio)   105, 
727, 72p 

McDowell  V.  Couch,  6  La.  Ann.  365,  4 
McKay  v.  Woodrujf,  77  Iowa  413,  12S 
McKenna,  Ex  parte,  79  Vt.  34,  72p 
Mann,  Ex  parte,  39  Tex.  Cr.  R.  491,  725 
Martin  v.  State,  21  Tex.  App.  i,  29 
Meadow  v.  Bird,  22  Ga.  246,  72j 
Michael  v.  State,  40  Ala.  361,  775 


137 


i3cS    TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 


Mount  V.  CommomveaUh,   2   Duv.   (Ky.) 

94,  125 
Mover  V.  Canlieny,  41  Minn.  242,  723 
MuUee,   In  re,   Fed.    Cas.   No.   9QI1    (7 

Blatchf.  23),  114 

N  elsonw  .Commonwealth,  109S.W.337, 125 

Nevit,  In  re,  54  CCA.  622,  114 

Norris,  Ex  parte,  8  S.C  (8  Rich.)  408,  iiq 

Opinions    of    Attorney    General    (U.S.), 

XX,  330,  116,  117 
Opinion  of  the  Judges,  3  Okla.  Cr.  App. 

31S, iiS 
Opinion  of  Justices,  In  re,  1 4  Mass.  47  2 ,  /  rj 
Opinion  of  Justices,  120  Mass.  600,  2g 
0  pi  iiion  of  J  ustices,  Inre ,  igoMa.ss.  66, 120 
O'Reilly  v.  Cleary,  8  Mo.  App.  186,  12 j 
Osburn  v.  United  States,  91  U.S.  474,  126 

Pargoud  v.  United  States,  13  Wall.  156, 118 
Paris  V.  Hinton,  132  Ky.  684,  114 
Parker  v.  State,  103  Tenn.  547,  121 
Parker  et  al.  v.  The  State,  135  Ind.  534,  //t*? 
Parrot!  v.  W'//.ro«,  51  Ga.  255,  126 
People  V.  Bowen,  43  Cal.  439,  724 
Peoplev. Burns,  77Hun.(N.Y.)  92, 128,  ijo 
People  V.  Frost,  117  N.Y.S.  524,  121 
People  V.  Hayes,  118  N.Y.S.  42,  i2q 
People  ex  rel.  Robin  v.  Hayes,  143  N.Y.S. 

325;  149N.Y.S.250;  163N.Y. 5.725,779 
People  V.  Marsh,  125  Mich.  410,  727,  727, 

726' 
People  V.  Moor,  62  Mich.  496,  7  7i',  7jo 
Peo^/e  V.  PoWfcT,  I  Edm.  Sel.  Cas.  (N.Y.) 

235,  124,  127 
People  V.  Potter,  i  Parker  Cr.  R.  47,  729 
People  V.  Pr/cc,  53  Hun.  185,  725 
Pleuler  v.  State,  11  Neb.  547,  779 
Powell,  Ex  parte,  73  Ala.  517,  727,  722,  72j 
Prout,  Ex  parte,  12  Idaho  494,  729 

Regina  v.  Murphy,  L.R.  2,  P.C  535,  772 
Reno,  Ex  parte,  66  Mo.   266,   720,   727, 

123, 127 
Rice,  Ex  parte,  162  S.W.  891,  72j 
Roberts  v.  State,  160  N.Y.  217,  126 
Rosson,  Ex  parte,  24  Tex.  App.  226,  723 
Rosson  V.  Slate,  23  Tex.  App.  2S7,  727, 

722,  123 
Rowc  V.  Slate,  2  Bay  (S.C.)  565,  126 
Ruhl,  In  re,  Fed.  Cas.  No.  121 24,  72^ 

Saunders  v.  State,  85  Ind.  318,  773 
Scott,  Ex  parte,  19  Ohio  St.  581,  116 
Scott  V.  United  States,  8  Ct.  CI.  457,  128 
Searle  v.  Williams,  2  Hob.  288,  294,  777 
Sharp  V.  State,  102  Tenn.  9,  774 
Singleton  v.  5/fl/e,  38  Fla.  297,  775 
Spajford   v.    Benzie   Circuit   Judge,    136 

Mich.   25,  720,  727 

Staev.  Addington,  2  Bailey  (S.C.)  516, 72p 


Stale  V.  Alexander,  76  N.C  231,  727 
State  V.  Barnes,  32  S.C  14,  727,  729 
67(Z/e  V.  Blalock,  Phillips  242,  775 
Stale  V.  Bowman,  145  N.C  452,  116 
State  V.  Carson,  27  Ark.  469,  72.^ 
State  V.  Chancellor,  i  Strob.  (S.C)  347, 130 
Stale  V.  Creech,  i  Mo.  App.  370,  124 
State  V.  Dunning,  9  Ind.  20,  23,  28,  115 
State  V.  Farley,  8  Blackf.  229,  725 
Slate  V.  Fleming,  26  Tenn.  152,  775,  77^ 
State  V.  Foley,  15  Nev.  64,  779,  727,  724 
State  V.  Fjdler,  i  McCord  (S.C.)  178,  729 
Slate  V.  Garrett,  135  Tenn.  617,  727,  725 
State  V.  Home,  42  So.  388,  7jo 
State  V.  Keith,  63  N.C.  140,  775 
5/a/c  V.  Martin,  59  Ohio  St.  212,  725 
State  V.  Nichols,  26  Ark.  74,  775,  723 
State  V.  Nile,  81  Kan.  204,  779 
State  V.  Parks,  122  Tenn.  230,  724 
5/o/e  £a;  re^.  v.  Renick,  157  Mo.  292,  114 
State  V.  Sauninet,  24  La.  Ann.  119,  774 
5/a<e  V.  Sloss,  25  Mo.  291,  775,  77^ 
State  V.  Smith,  Bailey  (S.C.)  283,  727,  729 
State  V.  Smith,  173  Ind.  3S8,  118 
State  V.  Spellings,  99  Tenn.  201,  126 
State  V.  Todd,  26  Mo.  175,  775 
State  V.  Wolfer,  53  Minn.  135,  130 
State  V.  Woolery,  29  Mo.  300,  727 
Sterling  v.  Drake,  29  Ohio  St.  457,  722 
Stetler,  In  re,  Fed.  Cas.  No.  13380,  727 
Stewart  v.  Stale,  146  P.  921,  779 
Sutton  V.  Mcllhany,  1  Ohio  Dec.  235,  720 

Taylor  v.  Goodrich,  25  Tex.  Civ.  App.  109, 

774 
Taylor  v.  5/a^e,  41  Tex.  Cr.  R.  148,  729 
Terrell  v.  5io<e,  148  P.  822,  725 
Thomas  v.  Sorrell,  Vaughn  ^,7,7,,  114 

United  States  v.  Klein,  13  Wall.  128,  77<5 
United  Slates  v.  Lancaster,  Fed.  Cas.  No. 

15557,  /27 
United  States  v.  Mayer,  235  U.S.  55,  772 
United  Stales  v.  5ja:  Z.o/.y  0/  Ground,  Fed. 

Cas.  No.  16299,  72,^ 
United  States  v.  Swift,  186  Fed.  1002,  77 j 
United  Slates  v.   Thomasson,   Fed.   Cas. 

No.  16479,  ^27 
United  States  v.  Wilson,  46  Fed.  748,  77<? 
United  States  v.  Wilson,  7  Pet.  150,  4,  727 

Victor,  In  re,  31  Ohio  St.  206,  722 
Villines  v.  5/a/e,  151  S.W.  1023,  725 

Wadleigh,  Ex  parte,  82  Cal.  518,  7  7<5 
Wallach  v.  Van  Riswick,  92  U.S.  202,  126 
Waring  v.  United  Slates,  7  Ct.  CI.  501,  72^ 
Weiner,  Ex  parte.  Fed.  Cas.  No.  17362,  724 
While  V.  5/a/e,  42  Miss.  635,  126 
Williams,  Ex  parte,  149  N.C.  436,  727 
Wood  V.  Fitzgerald,  3  Or.  568,  724 


INDEX 


Abuse  in  granting  clemenc}',  23-29,  59-64 

Adams,  John,  117 

Administration    of    pardon    authorities, 

23-64 
Advisory  pardon  boards,  11,  15,  57-59; 

in     California,     65-68;      in     Oregon, 

68-71;      in      Colorado,      81-83;      in 

Wyoming,  83-86 
Alabama,  11,  15,  19,  31,  34,  38.  44-46, 

50-51,  56-57,  59-60,  63 
Alfred,  King,  i 
Amnesty,  1 16-17 

Ammons,  governor  of  Colorado,  82 
Andros,  Sir  Edmund,  4,  8 
Applicants  represented  by  counsel,  51-54 
Applications  for  clemency,  36-37;  forms, 

36;   issuance  and  requisites,  119-22 
Arizona,   11,   15,   19,   28,  33-34,  36,  38, 

54,  56-57,  92,  96 
Arkansas,  11,  15,  19,  21,  34-3S,  38,  44, 

50-51,  56,  59-60,  63,  88,  92,  96 
Attendance  of  witnesses,  49-50 
Attorney-general,  attitude  of,  at  hearings, 

50-51 
Attorneys  appearing  for  applicant,  51-54; 

aversion  to,  51-54 

Bacon,  Lord  Francis,  2 
Baltimore,  Lord,  George  Calvert,  5 
Behavior  in  prison,  90-91 
Berkeley,  Lord  John,  6 
Bilbo,  governor  of  Mississippi,  58 

Bishbp:  on  impeachment  for  misuse  of 
pardoning  power,  29;  views  on  stand- 
ardization of  clemency,  103 

Blackstone,  Sir  William:  on  advantages 
of  a  monarchy  in  administering 
clemency,  3;  on  nature  of  a  pardon, 
no;  on  severity  of  English  criminal 
law,  3 

Bleasc,  governor  of  South  Carolina,  59 

Boyle,  governor  of  Nevada,  73 

Bracton,  1-2,  iio-ii 

Buchtel,  governor  of  Colorado,  81 


California,  11,  15,  19,  21,  23-24,  34-38, 
44-45,  47-48,  50,  52,  55-57,  60,  62 
65-68,  97 

Campbell,  governor  of  Arizona,  57 

Carey :  Joseph  M. ,  governor  of  Wyoming, 
84;  Robert  D.,  governor  of  Wyoming, 
85-86 

Carlson,  governor  of  Colorado.  82 

Carolinas,  the,  5-6 

Carteret,  Sir  George,  6 

Clemency:  among  Quakers  in  colonies, 
6-7;  and  sovereignty,  9;  before  or 
after  conviction,  30-31;  consideration 
of,  during  appeals  to  higher  courts,  49; 
extent  of,  in  colonies,  8;  for  treason 
and  impeachment,  32;  in  early 
England,  i;  in  Pennsylvania,  26-28; 
parliamentary  regulation  of,  2;  prin- 
ciples of,  transplanted  to  American 
colonies,  3;  recommendation  of,  48; 
record  to  be  submitted  to  legislature, 
55-56;  under  Teutonic  peoples,  _i; 
under  Tudors,  2;  who  mav  exercise, 
115-19 

Clerg>',  the,  and  clemency,  i 

Cleveland,  governor  of  New  York,  108 

Codification  of  criminal  law,  88 

Coke,  Sir  Edward,  2,  iir 

Colorado,  11,  15-16,  19,  33-34,  39,  44, 

46,  50-52,  55-57;   60,  81-83,  97 
Comer,  governor  of  Alabama,  59 
Compulsory    attendance    of    witnesses, 

49-50 
Connecticut,    5,    lo-ii,    16,    18-19,    21, 

30-31.   33-35,   39,   44-46,   50-51,    56, 

60,  62,  89,  92 

Conviction,  legal,  121 
Cooper,  governor  of  South  Carolina,  59 
Council  for  New  England,  4 
Counsel,  appearance  of,  54 
Crime,  scientific  study  of,  107 
Criminal  law,  severity  of,  3 
Criminology  and  clemency,  106 
Criticism  of  pardon  authorities,  23-29 
Cutt,  John,  7 


139 


I40     TEE  PARDONING  POWER  IN  THE  AMERICAN  STATES 


Data:  from  trial  judge  and  prosecuting 
attorney,  43;  required  in  application, 
36-37 

Debates  on  pardoning  power  in  constitu- 
tional conventions,  23-29,  31 

Delaware,  8-11,  15,  19,  30-31,  zi,  39,  50 

Democratic  Editorial  Association  of 
Indiana,  60 

Discharge  from  parole,  96 

Division  of  Pardons  and  Paroles,  Illinois, 
91 

Dix,  governor  of  New  York,  60 

Donaghey,  governor  of  Arkansas,  59 

Eden,  William,  3 

Edward  the  Confessor,  i 

Eligibility  for  parole,  89 

Evidence:    evaluation  of,  48;    limitation 

of,     48;      newly     discovered,     48-49; 

under  oath,  45 
Executive  powers,  defined  by  Jefferson,  9 

Fenton,  governor  of  New  York,  108 
Filing  of  action  taken  in  clemency  cases, 

55-56 
Florida,  11,  16,  19,  39,  115 
Foster,  Sir  Michael,  2 
Freund,   Ernst:    on  definite  method  in 

reaching     determinations,     103;      on 

proportionate  penalties,  88 

Georgia,  8,  10,  12,  15,  18,  19,  31,  ^s,  39, 
44,  46,  48,  50-51,  55-57,  60,  92,  96, 

lOI 

Glanville,  i 

"Good  time,"  90 

Goodrich,  governor  of  Indiana,  58,  60 

Gorges,  Sir  Ferdinando,  5 

Governor.  State:  compared  to  criminal 
court  of  equity,  96;  de  facto,  119; 
increase  in  clemency  power,  10, 
limited  power  of  clemency,  10;  limited 
qualification  for  exercising  clemency, 
107-8;  relation  to  advisory  pardon 
board,  57-59;  in  CaUfornia,  65-68; 
in  Colorado,  81-83;  in  Idaho,  74;  in 
Nevada,  72-73;  in  Oregon,  68-71;  in 
Utah,  75-76;  in  Wyoming,  83-86 

Grading  of  prisoners,  91-92 

Grant,  president  of  the  United  States, 
117 

Gravity  of  offenses,  88 


Gray,  Russell,  25 

Gunter,  governor  of  Colorado,  82 

Hale,  Sir  Mathew,  2 

Harrington,  governor  of  Maryland,  47,  63 

Hawkins,  Sir  William,  2 

Hearings:  clemency,  appearance  of 
counsel  for  applicant,  51-54;  attitude 
of  attorney-general,  50-51,  aversion  to 
the  appearance  of  counsel,  54;  de- 
sirability of  appearance  of  counsel,  54; 
filing  of  briefs,  51-54;  freedom  of,  49; 
ex  parte,  50;  oral  arguments,  51-54; 
open  or  closed,  44;  notice  of,  37-42; 
place  of,  34-35;  precedure  of,  45-46, 
65-66,  71-73,  77,  90;  prosecuting 
attorney  notified,  50;  public  interest 
in,  50;  representative  of  state  present, 
SO,  51;   time  of,  33-34 

Henderson,  C.  R.,  106 

Henry  VIII  and  royal  clemency,  2 

Hill,  governor  of  New  York,  108 

Hobbes,  Thomas,  2 

Holcombe,  Arthur  N.,  on  early  state 
governor,  9-10 

Holt,  Chief  Justice,  2,  iii 

Houx,  acting  governor  of  Wyoming,  86 

Idaho,    11-12,    16,    19,    33-34,    36,    39, 

44-46,  50-52,  56,  60,  74-75,  92,  96-97 
Illinois,  12,  15,  17,  19,  24-25,  30-31,  33, 

39,  44,  46,  48-50,  55,  57,  60,  63,  89-92, 

97,  124 
Impeachment:    for  misuse  of  pardoning 

power,  29;  pardon  for,  32,  89 
Indeterminate  sentence,  88-89 
Indiana,  12,   15,   18-19,   21,   28,  30-31, 

33-35,  39,  44,  47,  50-51,  56,  58,  60, 

62,  92,  loi,  118 

Iowa,  12,  15-16,  18,  20,  25,  30,  34,  36, 
39,  44-45,  49,  50-51,  56.  60,  62,  93,  96 

Jefferson,  President  Thomas,  9 
Johnson,  Hiram,  governor  of  California, 

67 
Johnson,  President  Andrew,  117 
Judiciary,  relation  to  fixing  penalties,  88 
Juries,  recommend  clemency,  106 

Kansas,  12,  15,  20-21,  30-31,  33-34,  39, 

49,  56,  92-93,  96,  109,  119,  123 
Kendrick,  governor  of  Wyoming,  84 
Kentucky,    12,    15,    20-21,    25,    30-31, 
34-35,  39,  53,  55-56,  92-93 


INDEX 


141 


Lack    of    public    interest    in    clemency 

hearings,  50 
Legal  aspects  of  pardoning  power,  110-30 
Legislative  control  of  pardon  authorities, 

30 
Legislatures,  relation  to  fixing  penalties, 

88 
Lieber,  Francis,  on  sovereignty  and  the 

pardon  power,  9  n. 
Limitation:   of  evidence  in  hearings,  48; 

upon  counsel  appearing  for  applicants, 

51-54;  upon  pardon  authorities,  29-30, 

60;  upon  rehearings,  54 
Lincoln,  President  Abraham,  117,  120 
Locke,  John,  6 
Louisiana,    10,    12,    15,    20-21,    30-31, 

33-35,  39,  45,  54-56,  93 
Lowden,  governor  of  Illinois,  58 

Madison,  President  James,  117 

Maine,  5,  10,  12,  15,  20,  30-31,  Zi,  39, 

44,  50-51,  56,  60,  92,  96 
Maryland,  5,  10,  12,  15,  20,  30-31,  2>3y 

40,  44-47,  50-51,  56,  60,  62-63,  88,  93 
Massachusetts,  4,  10,  12,  15,  20,  25,  30, 

34,  40,  44-47,  50-51,  56,  60,  89,  115, 

119 
Mathews,  J.  M.,  on  practice  of  governors 

in  granting  pardon,  96 
Maximum  and  minimum  penalties,  88-89 
McKeKne,  governor  of  Nebraska,  58 
Mease,  Dr.  James,  26 
Merit  system,  applied  to  parole,  90-91 
Michigan,  12,  15,  20,  33,  35-36,  40,  44, 

47,   50-52,   55-56,   58,   60,   62,   92-93, 

96,  120 
Mifflin,  governor  of  Pennsylvania,  1 16-17 
Ministerial  act  of  secretary  of  state  in 

signing  pardon,  56 
Minnesota,  11-12,  16,  20-21,  ^1,,  35,  40, 

50,  55-56,  93 
Mississippi,  13,  15,  20,  30-31,  33-34,  4o, 

55,58 
Missouri,  13,  15,  17,  20-21,  31,  34-35, 

40,  44,  56,  IIS,  120 
Montana,  11,  13,  15,  20-21,  33-34,  4°, 

44,  51,  53,  89,  93,  96 

Nebraska,  13,  15,  17,  19-20,  33,  40,  44, 
46,  48,  50-51,  56,  58,  60,  63,  89,  92-93, 
96,  114, 119 

Nevada,  11,  13,  16,  20,  34,  37,  47,  50-53, 
55-56,  60,  71-73,  87,  94,  97,  "9 


New  Caesarea,  6 

New  Hampshire,  7-8,  lo-ii,  13,  15,  20, 

30,   33,   41,   44-45,   50-51,   55-56,   58 

60,  62 
New  Jersey,  6-7,  9-10,  13,  16-17,  20-21, 

30,  2,5,  35-36,  51,  55,  92 
New  Mexico,  13,  15,  20,  33,  41,  44,  46, 

48,  50-51,  55,  60,  94 
New  York,  6,  10,  13,  15-16,  20,  29,  31, 

34,  50,  56,  60,  94,  108-9,  119 
North  Carolina,   10,   13,   15-16,   20,   22, 

33-35,  41,  44,  47,  50-51,  55-56,  58,  60, 

62,  92,  94,  96 

North  Dakota,  13,  16,  20,  22,  33-35,  41, 

44,  46,  50,  56,  61-62,  94 
Notice  of  hearing,  37-42,  55 

Offenses:  not  within  scope  of  inde- 
terminate sentence  law,  89;  subject  to 
the  pardoning  power,  113-15 

Ohio,  13,  15,  17,  20,  31,  33-35,  41,  44-45. 
47,  52,  60,  62,  92,  94 

Oklahoma,    14,    16,    20,    29,    33-34,   4i, 

44-46,  50-51,  56,  58,  60,  62,  88,  104, 

118,  119 
Olcott,  governor,  of  Oregon,  69-70,  99 
Orchard,  Harry,  75 
Oregon,  14-16,  21,  32,  34,  37,  41,  44,  46, 

50,   53,   58-59,  61-62,  68-71,  89,  94, 

97,  128 

Pardon:  application,  issuance,  and  requi- 
sites of,  119-22;  before  conviction, 
120-21;  conditional,  127-30;  delivery 
and  acceptance,  121-22;  contract  to 
procure,  123;  effects  of,  124-25;  for 
impeachment,  32;  for  treason,  32; 
nature  of,  1 10-13;  offenses  subject  to 
pardon,  113-15;  relation  of,  to  costs, 
fines,  forfeitures,  and  penalties,  125-27; 
revocation  for  fraud,  122-23;  under 
seal,  56,  120;  who  may  exercise,  115-19 

Pardon-authorities:  need  for  reorganiza- 
tion, 107;  organization  of,  11-15; 
personnel  of,  17-21;  relation  to  courts, 
46-47;  rules  governing,  T,y,_  types 
of,  15-16;   type  of  reorganization,  108 

Pardon  Board  of  California:  method  of 
procedure,  65-66 ;  recommendations 
of,  66-68;  relation  to  governor,  65-66; 
standardization  of  clemency,  98-99 

Pardon  Board  of  Colorado:  composition, 
81;  its  records,  83,  86-87;  relation  to 
governor,  81-83;  standardization  of 
clemency,  100 


142     THE  PARDONING  POWER  IN  THE  AMERICAN  STATES 


Pardon  Board  of  Idaho:  its  records, 
74-75;  organization  of,  74;  stand- 
ardization of  clemency,  100;  types  of 
cases  considered,  75 

Pardon  Board  of  Nevada:  attitude  of 
members  toward  clemency,  72-73; 
degree  of  leniency  shown,  73;  its 
records,  71;  method  of  procedure, 
71-73;  publicity  in  voting,  72-73; 
standardization  of  clemency,  97-98 

Pardon  Board  of  Oregon:  degree  of 
leniency  shown,  70-71;  forms  of  clem- 
ency, 69;  recommendations  of  board, 
70-71;  relation  to  governor,  69; 
standardization  of  clemency,  99 

Pardon  Board  of  Utah:  composition,  75; 
its  records,  76-77;  position  of  governor, 
75~76;  procedure,  77;  standardization 
of  clemency,  100 

Pardon  Board  of  Wyoming:  composition, 
83;  its  records,  85-86;  relation  to 
governor,  83-86;  standardization  of 
clemency,  100 

Pardon  data,  submitted  to  legislature, 
55-56 

Patrick,  Albert  T. ,  60 

Parole,  35,  69,  89,  91,  92-96,  107 

Parole  boards,  35  n.,  44,  56,  68-69,  74 

Penalties,  scientific  study  of,  107 

Penn,  William,  6-8 

Pennsylvania,  7-8,  10,  14-15,  21-22, 
25-28,  30-31,  33-35,  41,  44,  45-46, 
50-51,  54-56,  58,  60,  92,  95,  117 

Phillipp,  governor  of  Wisconsin,  48 

Political  influence  in  securing  clemency, 
62-64 

Precedents  governing  granting  of  parole, 
92-96 

Principles  suggestive  for  standardization 
of  clemencj',  104-7 

Prison  behavior,  90-91 

Prison  staff,  Illinois,  91 

Prosecuting  attorney,  receives  notice  of 
hearing,  50 

Psychiatry,  and  psychology,  relation  to 
clemency,  106 

Public  officials,  intercede  for  clemency,  63 

Punishment,  88;  degree  of,  90 

Purviance,  J.  N. ,  28 

Quakers,  relation  to  clemency,  6-7 

Recommendation:  of  advisory  pardon 
boards,  57-59,  65-68,  68-71,  82-83;  of 
clemency,  48 


Record  of  clemency  action  submitted  to 

legislature,  55-56 
Rehearings,  54-55 
Relativity  of  penalties,  88 
Restoration  to  citizenship,  69 
Review  of  court  proceedings  by  pardon 

boards,  46-47 
Rhode    Island,    10,    14-15,    21-22,    30, 

33-35,  41,  44,  55-56,  95 
Robinson,  governor  of  New  York,  108 

Scope  of  inquiry  in  hearings,  46-47 
Seal,  pardon  imder,  56 
Secretary,  of  clemency  board,  108 
Secretary  of  State's  signature,  of  pardon 

a  ministerial  act,  56 
Sentence,  reduction  of,  90 
Seymour,  governor  of  New  York,  108 
Shafroth,  governor  of  Colorado,  82 
Shoup,  governor  of  Colorado,  83 
Sleeper,  governor  of  Michigan,  58 
Small,  governor  of  Illinois,  58 
Smithers,  W.  W. ,  64;  views  on  standardi- 
zation of  clemency,  102 
Smithers  and  Thome,  26,  27,  104,  105 
South  Carolina,  9-10,  14-15,  21,  31,  33, 

41,  56,  59,  62 

South  Dakota,  11,  14,  16,  21,  33-34,  41, 
44,  47,  50-51,  56,  63,  92,  95 

Standardization  of  clemency,  88-109; 
reasons  for  lack  of,  101-2;  of  parole, 
92-96 

State  Board  of  Prison  Directors,  Cali- 
fornia, 65 

Statistics  on  pardons:  in  Illinois,  24-25; 
in  California,  67-68;  in  Colorado,  82- 
83 ;  in  Nevada,  73 ;  in  Oregon,  70-7 1 ;  in 
Pennsylvania,  26-28;  in  Utah,  78-80; 
in  Wyoming,  84-86 

Stenographic  reports  of  clemency  hear- 
ings, 46 

Stephens,  governor  of  California 

Subpoenae  of  witnesses,  50 

Taft,  Chief  Justice,  on  amnesty,  1 16-17 
Termessee,  14-16,  21-22,  30-31,  Ht  3^, 

42,  44,  55,  92,  95-96,  115 
Testimony  under  oath,  45 

Texas,    14-15,    21-22,    34-36,    42,    44, 

55-56,  59,  63,  96,  120 
TUden,  governor  of  New  York,  108 
Time  of  hearings,  33-34 


INDEX 


143 


Time  limit  for  rehearing,  54 
Treason,  pardon  for,  32,  89 


West,  governor  of  Oregon,  59,  61,  69-70, 

99 

West  Virginia,  15-16,  21-22,  33-35,  42, 

TT  .,    ,    c<-  ^       -r,         <.         --      f    T     ^-  44,  47,  49,  52,  54,  89,  92,  95 

United    btates    Department   of   Justice,  -iTr,  •.  tut  ••!,•• 

views    regarding    standardization    of  Whitman,  John  L.,  on  criminal  admmis- 

clemency,io2  tration,  91 

Use    of    money    to    hire    attorneys    to  Who  may  exercise  clemency,  115-19 

secure  clemency,  52-54  William  the  Conqueror,  i 

Utah,  II,  14,  16,  21,  33-34,  42,  44,  46,  Williston,   Samuel,  on  the  nature  of  a 

5c^52,  54,  56,  62,  75-81,  97,  loi  ,,  P^''^^"'  "^^^ 

Wisconsm,  15,  21-22,  33-35,  42,  44-45, 
47-48,  50-51,  63,  88,  95 
Vermont,   10,   14-15,   21    30-32,  34-35,       Withycombe,   governor   of   Oregon,    61, 

42,  44-46,  50-51,  55-56,  60,  62  5^_yo^  g^ 

Virginia,   4,    10,    15,    21-22     33-35,   42,       witnesses,  attendance  at  hearings,  49-50: 
44-46,  50-51,  55-56,  60,  62  subpoenae  of,  50 

Wyoming,  15-16,  21,  2,2,,  37,  42,  44,  46, 
Washington,    15-16,   21-22,   31,   Z3,  42,  50-51,  54,  56,  59,  83-86,  92,  95,  97 

49,  51,  92 
Washington,  President  George,  116  York,  James,  Duke  of,  7 


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